The Board of Benevolence and of Aged Masons, Widows and Orphans' Fund v Q-Comp
[2010] QMC 28
•17 May 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
The Board of Benevolence and of Aged Masons, Widows and Orphans’ Fund v Q-COMP [2010] QMC 28
PARTIES:
THE BOARD OF BENEVOLENCE AND OF AGED MASONS, WIDOWS AND ORPHANS’ FUND (MASON CARE QUEENSLAND)
(appellant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG121591/09(0)
DIVISION:
Magistrates Courts – Industrial Magistrate
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
17 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
10 May 2010, 11 May 2010, 12 May 2010
MAGISTRATE:
Lee G
ORDER:
The decision of Q-COMP dated 11 May 2009 is set aside and a decision is substituted that the worker did not sustain an injury as defined in the Act. This means the appeal is successful.
CATCHWORDS:
INDUSTRIAL LAW - WORKERS COMPENSATION - personal injury – psychological injury – whether arose out of or in the course of management action – whether management action reasonable and taken in a reasonable way
Aged Care Act 1997 (Cth), s 96-1, Part 4.1, Part 5.4
Workers Compensation and Rehabilitation Act 2003 (Qld), s 32(5)
COUNSEL:
A McLean Williams for appellant
S Sapsford for respondent
SOLICITORS:
Bradleys Lawyers for appellant
Respondent on own behalf
By applications dated 2 and 18 December 2008 Ms Susan Halvorsen applied for workers compensation[1] in respect of a psychological injury which was said to have occurred in her employment as a personal care assistant with the Board of Benevolence and of Aged Masons, Widows and Orphans’ Fund (Mason Care Queensland) (the employer) at its Cooloola facility at Tin Can Bay. Ms Halvorsen commenced employment with the employer at Cooloola in 2001 on a permanent part time basis rostered to work about 40 hours per fortnight in 2008.
[1] Exhibits 17 & 1 respectively; exhibit 17 is signed by Ms Halvorsen;
On 30 January 2009 the claim was rejected by WorkCover[2]. In its decision WorkCover rejected the factual bases for the two factors relied on by Ms Halvorsen at that point, namely, an increased workload since July/August 2008 and an incident on 18 or 19 October 2008 regarding an initial requirement which was later countermanded to attend work while her mother was sick. WorkCover also concluded that, all in all, management action taken was reasonable even though such action was not perfect. As she had not sustained an injury as defined, it was determined that compensation was not payable to her under section 108 of the Act.
[2] See exhibit 2 for WorkCover’s Statement of Reasons;
Ms Halvorsen requested a review of that decision[3]. In submissions to Q-COMP she seems to have relied on the same two factors that were agitated before WorkCover although it is not clear whether she relied on the increased workload starting from July or August 2008 as originally asserted or earlier because Q-COMP accepted the factual bases for psychologist Mr Nemback’s opinion that she said she started to feel stress about April/May 2008 which is 15 months prior to the date of that report i.e. 21 August 2009[4]. Upon review on 11 May 2009, in accepting the “increased workload” stressor as being causative of Ms Halvorsen’s condition, Q-COMP[5] set aside WorkCover’s decision on the basis that it arose out of or in the course of employment, that employment was a significant contributing factor, that lack of management action in this respect was a catalyst to Ms Halvorsen’s condition thus constituting management action and that that action was unreasonable and taken in an unreasonable way. In coming to its decision, in respect of the “increased workload” complaint, Q-COMP preferred the evidence adduced for and on behalf of Ms Halvorsen in finding that her “injury did not arise out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with her employment”[6]. However, Q-COMP rejected as a stressor causative of Ms Halvorsen’s condition the second factor relied on by her, namely, the requirement, later countermanded, to go to work when Ms Halvorsen’s mother was sick on 18 or 19 October 2008[7].
[3] Exhibit 3 – dated 10 March 2009;
[4] Exhibit 4 - “Reasons for Decision” at page 7 of 14;
[5] Exhibit 4 - “Reasons for Decision” at pages 7, 8 & 13;
[6] Exhibit 4 at page 13;
[7] Exhibit 4 at page 7;
The employer appeals to this court from Q-COMP’s decision pursuant to section 550 of the Act[8].
[8] Exhibit 5; section 550 is in Division 1 (Appeals to Industrial Magistrate or Industrial Commission) Part 3 (Appeals) of Chapter 13 (Reviews and Appeals);
This appeal is not an appeal in the strict sense. It is a hearing de novo to be conducted as a full trial where both parties call evidence in support of their cases and witnesses are subject to cross examination: see for example Labaj v. WorkCover Queensland [2003] QIC 155; 174 QGIG 370 (17 September 2003) per Hall P[9]. It is trite to observe that the employer as the appellant bears the onus of proof on the balance of probabilities: for examples in this jurisdiction see Labaj v. Q-COMP [2005] QIC 37; 179 QGIG 365 (20 June 2005) and Briffa v. Q-COMP [2005] QIC 55; 180 QGIG 70 (19 August 2005) per Hall P.
[9] While that case dealt with the WorkCover Queensland Act 1996 (now repealed), the comments equally apply to the current Act; see also Stephen Horace MacDonald v. Q-COMP (2) [2008] 188 QGIG 180 and Ergon Energy v. Training and Employment Recognition Council [2008] QIRC 101;
Mr A. McLean Williams of counsel appeared for the employer and Mr S. Sapsford of counsel appeared for Q-COMP. The trial proceeded on 10, 11 & 12 May 2010. While Ms Halvorsen is strictly not a party to this appeal, with the consent of the employer, she remained present in court during all the evidence to provide adequate instructions to counsel for Q-COMP. At the conclusion of evidence I received both written and oral submissions and then adjourned to 17 May 2010 for judgement.
Relevant Statutory Provisions
Section 108 of the Workers Compensation and Rehabilitation Act 2003 (the Act) generally provides that compensation is payable for an “injury” sustained by a “worker”.
Relevantly “worker” is defined in section 11[10] to include an individual who works under a contract of service.
[10] In Chapter 1 (Preliminary) Part 4 (Basic concepts);
The definition of “injury” is in section 32 (Chapter 1 Part 4 of the Act) as follows:
32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury……
(3) Injury includes the following--
(a)…;
(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)….;
(iii)…..
(5) Despite subsection (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) ….Examples of actions that may be reasonable management actions taken in a reasonable way--
action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employmentThe Issues
In this case, it is not disputed that Ms Halvorsen was at all material times a worker as that term is defined in section 11 of the Act[11]. I agree with that.
[11] Paragraph 1 submissions for the employer; paragraph 5.3 submissions for Q-COMP;
It is also not disputed that Ms Halvorsen has sustained personal injury described in various ways but includes an adjustment disorder with depressed mood, that this arose out of or in the course of her employment as a personal care assistant, and that her employment was a significant contributing factor to that injury. Nothing is in issue with respect to those matters in either of subsections 32(1) or (3). In that regard I simply note that this is supported by the evidence of psychologist Mr Nembach, and psychiatrist Dr Apel. I accept counsel’s submissions in this respect[12]. For present purposes it matters not whether Ms Halvorsen’s personal injury falls within either of subsections 32(1) or (3). I am satisfied that she sustained an injury as defined subject to the exclusionary provision in subsection 32(5).
[12]Apart from some antecedent factual matters identified below, the central issue is whether Ms Halvorsen’s personal injury arose out of or in the course of reasonable management action taken in a reasonable way by her employer in connection with her employment: subsection 32(5)(a)[13]. If the answer is in the affirmative, then Ms Halvorsen would be taken not to have sustained an injury as defined in the Act so that compensation would not be payable. An oral submission was made for the employer, although not a strong submission, that subsection 32(5)(b) might apply to an incident now relied on by Ms Halvorsen as a stressor in November 2007 where her supervisor was correcting her mode of work depending on my findings of fact on that incident. For reasons that follow, I do not consider that subsection 32(5)(b) has any application.
[13] Paragraphs 12 & 14 submissions for employer; paragraph 7.2 submissions for Q-COMP;
The employer called the following witnesses:
· Ms Heather Goodall (registered nurse and supervisor of Cooloola facility);
· Ms Joyce Stephan (the employer’s regional manager, central and southern Q’ld);
· Mr Grant Barrow (the employer’s human resource manager);
· Dr G. Apel (psychiatrist).
Q-COMP called the following witnesses:
· Ms Susan Halvorsen (the worker);
· Ms Linda Selby (personal care assistant at Cooloola at the time but not now);
· Ms Linda Sargeant (personal care assistant at Cooloola);
· Mr R. Nemback (the worker’s treating psychologist)(by phone);
· Dr I. Cabatuando (the worker’s general practitioner) (by phone).
Seventeen exhibits were tendered.
Background
The employer, operates a number of what can be loosely described as aged care facilities under licences issued pursuant to the Aged Care Act 1997 (Cth) administered by the commonwealth Department of Health and Ageing. It is not contentious that at all material times the employer was, and remains, an approved provider of residential care services as those terms are defined in the Aged Care Act 1997[14]. Its head office is at Sandgate in Queensland which is also the site of its largest residential care facility of about 445 beds[15]. The employer also has a 48 bed facility on the south coast as well as a smaller 20 bed facility at Cooloola situated at Tin Can Bay in Queensland. The issues in this appeal are concerned with what happened at the Cooloola facility predominantly in the period 2007 to late 2008. At that time the accreditation for Cooloola as a residential care service was due to expire 11 December 2009[16]. By comparison to other facilities, Cooloola is generally considered to be a low care facility although its licence includes what is described as an “age in place” capacity where residents who enter with minimal care requirements are allowed to stay there as their care needs increase to the point where it is unsafe when a transfer to hospital or a high care facility is more appropriate[17]. In this case there is evidence to the effect that the level of care can be reviewed from time to time to either increase or decrease the classification of care for an individual which in turn would affect the amount of subsidy paid to the approved provider. Indeed, this appears to be provided for in Part 2.4 of the Aged Care Act 1997 in a variety of circumstances[18].
[14] Incorporating stringent procedures in the Accreditation Grant Principles 1999 made pursuant to section 96-1 of the Aged Care Act 1997; see also Part 2.1 (Approval of Providers) and section 41-3;
[15] Evidence of Ms Joyce Stephan on 10 May 2010 – there are no transcript references. Instead of waiting for transcripts, judgement was delivered without delay;
[16] Exhibit 7 – reports of the Aged Care Standards & Accreditation Agency under the heading “Home Status”; that body is a body corporate appointed under Part 5.4 of the Aged Care Act 1997 as an accreditation body to promote, among other things, best practice, high quality care and assist industry to improve service quality;
[17] Evidence of Ms Joyce Stephan 10 May 2010;
[18] See also Part 8 of the Classification Principles made pursuant to Part 2.4 and section 96-1 of the Aged Care Act 1997;
It appears that as a condition of approval of residential care services, providers are subject to periodic and sometimes unannounced inspections by assessors of “The Aged Care and Accreditation Agency Ltd” which is an “accreditation body” under the Aged Care Act 1997 and has a duty under that Act to undertake these inspections and report findings to the Department of Health and Ageing[19]. An approved provider has a statutory obligation to facilitate these inspections: see Accountability Principles 1998. This is evident from exhibit 7 which consists of three reports each described as a “support contact record” for visits to Cooloola on 10 June 2008, 22 September 2008 and 5 March 2009. The least intrusive inspection under the Accreditation Grant Principles 1999 is the “support contact”. A more intrusive inspection called a “review audit” can be undertaken in a range of circumstances including if the accreditation body believes on reasonable grounds that there may not be compliance. According to exhibit 7 the most recent audit was on 3 or 4 October 2006. Thereafter, inspections were “support contact” visits. The purpose is to monitor compliance with accreditation standards[20] and other responsibilities under the Aged Care Act 1997. Powers of assessors under the Accountability Principles 1998 are wide ranging including the power to inspect and copy documents, access electronic data and to question staff and residents. Sanctions apply for non compliance. I accept that, for good reason, the aged care industry is highly regulated.
[19] Part 5.4 Aged Care Act 1997 and the Accreditation Grant Principles 1999 made pursuant to section 96-1 of that Act;
[20] In the Quality of Care Principles 1997 made pursuant to sections 54-1, 54-2 in Part 4.1 (Quality of Care) & section 96-1 of the Aged Care Act 1997;
Relevant to this case, an approved provider must comply with accreditation standards on a range of areas including adequate human resource management to ensure “There are appropriately skilled and qualified staff sufficient to ensure that services are delivered in accordance with these standards and the residential care service’s philosophy and objectives”: see Quality of Care Principles 1997, Part 3 (Accreditation Standards)[21] and Schedule 2 item 1.6. This was referred to in the “support contact record” dated 5 March 2009 in exhibit 7. The employer was well and truly compliant at that point in time.
[21] In particular section 18.8(2)(a) “management systems, staffing and organisational development”;
Ms Halvorsen, born on 11 November 1953, commenced part time work as a personal care assistant (PCA) for the employer at the Cooloola facility in about 2001. When she applied for the position she had no direct experience in aged care work but had experience in working with people with disabilities including being able to manage “bad behaviour”. She possesses a TAFE Certificate III presumably in either community or disability services. She is not a registered nurse. Her rostered hours increased over time to about 40 hours per fortnight in 2008. In the main Ms Halvorsen worked afternoon shifts in 2008[22]. Her last worked shift at Cooloola was on 29 October 2008[23]. She saw her general practitioner Dr Cabatuando on
3 November 2008 after being discharged from Gympie Hospital as a result of having fallen into a fish pond. Back x-rays were ordered to exclude a fracture. She saw Dr Cabatuando a few times after that and on 5 December 2008 Dr Cabatuando issued a WorkCover certificate certifying her unfit for work from 1 November 2008 to
5 January 2009 for a “work stress related disorder”[24]. She completed an application for compensation on 2 December and again on 18 December 2008. It is not too contentious that Ms Halvorsen has been on periodically increased dosages of anti-depressant medication since about 2004 for depression, that she suffers from long standing Lupus and thyroid problems which affect mood[25]. She currently resides in New South Wales.
[22] 2.45p.m. to 10.30p.m. see exhibit 1 (statement to application for compensation) and exhibit 6 (employee timesheets);
[23] See exhibit 6 – her timesheets;
[24] Exhibit 16;
[25] Oral evidence of Dr Cabatuando; see also paragraph 5 of employer’s submissions;
Ms Goodall, a registered nurse with extensive aged care experience since 1989, was at all material times Ms Halvorsen’s direct supervisor and was employed full time having commenced employment at Cooloola on 8 February 1998. There were two other registered nurses employed there and rostered at different times including Ms Pat Lea who worked weekends and the odd week day. The normal shift for Ms Goodall was 6.45a.m. to 3.15p.m. every day and then she was available on call. In addition, there was about 25 paid staff at Cooloola most of whom were employed on a permanent part time or casual basis and most of whom were presumably PCAs. Volunteers also assisted in various ways.
It is important in this case to briefly outline the relative roles of the registered nurses and the PCAs at Cooloola according to the evidence. This in turn will assist in understanding the methods of categorising the level of care needed for residents at Cooloola and the assessment tools used pursuant to the Aged Care Act 1997 (Cth) administered by the Department of Health and Ageing.
At Cooloola the role of the registered nurse is to assess the care that is appropriate for each resident and then to develop a care plan which outlines the care required and the actions or activities required accommodating the assessed level of care in any given case. Registered nurses have this responsibility due to their qualifications and skills. On the other hand, PCAs are responsible for actually performing the actions or activities that have already been assessed by a registered nurse as being appropriate to accommodate the assessed level of care in any given case. While noting that everyone at Cooloola apparently works in a team environment, it is not the role of a PCA, as I understand it, to unilaterally determine whether a particular resident requires care encompassing actions or activities not incorporated in the care plan prepared by a registered nurse or to depart from a direction given by a registered nurse.
Ms Goodall explained the assessment tools. At first there was the Resident Classification Score (RCS) which had a scale reflecting an ascending level of care from 8 to 1. Ms Goodall explained that RCS 8 to 5 were considered low care and RCS 4 to 1, high care. Then, pursuant to commonwealth law, a new classification tool was progressively introduced from March 2008 called the Aged Care Funding Instrument (ACFI) which in some instances had the effect of increasing the assessment of care for funding purposes although, according to Ms Goodall, there was no difference in fact to the actual care required in respect of the residents at Cooloola in 2008 by virtue of that change. While acknowledging that the mix of residents changed from time to time, Ms Goodall said that the average score for residents in 2008 was about RCS 6 which is low care. She said there were high care residents there but in the main, low care residents.
Ms Stephan, who, among other things is also a registered nurse, is the employer’s regional manager for central and southern Queensland and is Ms Goodall’s direct supervisor. She mainly worked out of head office at Sandgate although she visited Cooloola on a monthly basis.
Discussion
It should be noted that I respectfully do not agree with written submissions for the respondent (paragraph 5.12) where it is stated that it appears not disputed that Ms Halvorsen’s injury was as a result of management action and that consideration should therefore be immediately directed to whether that management action was reasonable and taken in a reasonable way. To the contrary, the employer led a volume of evidence challenging the factual basis for Ms Halvorsen’s claim a large part of which related to the alleged increased workload. It is my view that these factual matters need to be resolved first although, if those matters are found to exist, then it is not contentious that they are instances of management action[26].
[26] See paragraph 15 submissions for the employer;
I note that the two stressors originally relied on in her application for compensation and on review to Q-COMP have now metamorphosed in this court to other matters. At first she relied on (1) increased workload (10 minute showers, buzzers etc due to care needs increasing) and (2) the incident on 18 or 19 October 2008 requiring her to come to work when her mother was sick[27]. Given its findings on 11 May 2009 in rejecting this second ground, Q-COMP understandably appears not to rely on this ground in this court although I note that Ms Halvorsen was quite passionate in giving evidence about it. If it did so, I would have agreed with Q-COMP’s decision maker on this point. The additional stressors now relied on seem to include an incident in late 2007 between Ms Halvorsen and Ms Goodall, being required to continually work overtime to complete tasks and not being paid for it, Ms Goodall had time off work in July 2008 after fracturing her leg and this compromised operational efficiency, some staff not performing so that others including Ms Halvorsen had to take up the slack, and an increase in high care residents[28].
[27] See exhibits 1, 2 and 4;
[28] See paragraph 6 submissions for Q-COMP;
There is evidence of a verbal incident in late 2007 between Ms Halvorsen and Ms Goodall. There is dispute as to what that was all about i.e. the method of using a lifting hoist or the type of nappy pad used on a patient. In my view this does not matter here. For reasons which are unclear, it is not disputed that Ms Halvorsen took a week off shortly thereafter and that Ms Goodall extended an olive branch and sent her a bunch of flowers. Ms Goodall quite appropriately conceded that what she said to Ms Halvorsen on that occasion was inappropriate. She said words to the effect that if she wanted to make these decisions, Ms Halvorsen should go to university and become qualified. Otherwise, I accept that Ms Goodall was entitled as the supervisor and registered nurse to correct Ms Halvorsen in either of those issues referred to above. I found Ms Goodall an impressive and very credible witness. During all of her evidence she made appropriate concessions when they ought to have been made in a spontaneous and frank way. I do not accept the respondent’s submissions that this incident set the tone for their future relationship. Apart from suggestions that staff in general were complaining about workload in 2008 and other matters such as not being paid overtime, it appears nothing specific has been alleged by Ms Halvorsen until many months later in October 2008 when the issue of 10 minute showers arose. I accept the employer’s submissions that this issue was put to rest back then (2007) and things resumed as normal. I am comforted in that view in the fact that Ms Halvorsen made no reference to that in her application for compensation or to Q-COMP’s review officer and indeed no specific reference of that was made to her treating psychologist Mr Nemback and psychiatrist Dr Apel apart from a general reference to having taken 2 weeks off 12 months earlier because of issues with Ms Goodall. Further, Dr Apel and Mr Nemback seem to focus their attention on increased workload which, it appears, is Mr Halvorsen’s main complaint and which formed the basis of their opinions. I find that this incident was not causative of Ms Halvorsen’s condition.
In her statement in support of her application for compensation Ms Halvorsen said “In more recent times since around July/August 2008 I have noticed a significant increase in my workload ....” (exhibit 1). She then gives examples. I note her wage records in exhibit 6 show that she was on annual leave in July 2008. She only worked 1 July 2008 and returned to work after annual leave on 6 August 2008. She only worked 12 days in August i.e. 6 to 11 August, then, 21 & 22 August, then 24 to 27 August 2008. The length of shifts varied from 4 to 7.25 hours. I accept the employer’s submissions that this seems somewhat at odds with her statement made in support of her application for compensation.
Further, because Ms Goodall fractured her leg, she went off work on about 17 July 2008 and returned to work on about 13 August 2008. In that period she remained in regular phone and computer contact with Cooloola to assist both replacement registered nurses one of whom knew that facility (Ms Lea) and the other registered nurse experienced in aged care from Western Australia who took over in mid-August and who had already been orientated into Cooloola. I note that Ms Halvorsen only worked 6 days in the period 17 July to 13 August 2008 when Ms Goodall was away. On that point, even if operations were compromised to some degree, any impact on Ms Halvorsen in my view would have been minimal. In any event I accept Ms Goodall’s evidence that extra staff were employed while she was recovering and that reasonable measures were put in place to cater for her absence. I do not accept that Ms Goodall’s time off work compromised the operation of Cooloola as suggested in submissions for Q-COMP[29]. This factor was not relayed to or considered by either psychologist Mr Nemback or psychiatrist Dr Apel.
[29] Paragraph 6.2, first dot point on page 8;
Ms Halvorsen next worked from 5 to 10 September, 12 September, 15 & 16 September and then 18 to 24 September 2008 – a total of 16 days in September. After having a week off she then worked 1 & 2 October, 4 & 5 October, 7,8 & 9 October, 14 October, 19 to 22 October and 25 to 29 October 2008 (her last day worked) – 17 days worked in October 2008.
Ms Halvorsen told her treating psychologist Mr Nemback that her husband left her in March 2008 and that she felt stressed because of work before that. Her mother became ill in late 2008. She also told Mr Nemback that conflict regarding workload with her supervisor, presumably Ms Goodall, began in about April 2008 i.e. 12 months before the report dated 8 April 2009[30]. This is also at odds with what she said in her statement in support of her compensation claim. Further, Mr Nemback gave evidence that, in giving his opinion, he assumed her to be working full time hours. He was not aware that Ms Halvorsen was only working roughly 40 hours per fortnight and that this may well affect his opinion somewhat. I accept the employer’s submissions in this respect which also applied to Dr Apel[31].
[30] Exhibit 10;
[31] Paragraph 4 submissions for the employer;
During her evidence, on the question of the increased workload, Ms Halvorsen gave the impression of being a well motivated dedicated person who took it upon herself to do what she thought was necessary in the circumstances of each resident. For example, despite the opinion of an experienced aged care nurse such as Ms Goodall, she thought it necessary to stay with residents while they showered instead of setting them up and then going about other tasks returning later when the residents had finished showering. In her attempt in justifying this she said that these residents, some of whom suffered from dementia to varying degrees, might turn on the hot tap and burn themselves. Ms Goodall gave evidence that a device had been installed in all showers so that it was not possible for a patient to be burnt by hot water in 2008. During evidence and before an adjournment Ms Halvorsen seemed to have no knowledge as to what that device was let alone whether such device was installed at Cooloola. After the adjournment, she then articulated some knowledge of the device but then said that not all showers had been fitted with that device in 2008. I accept Ms Goodall’s evidence in this respect. I also accept her evidence that in her judgement as a registered nurse experienced in aged care that various patients could shower themselves in the absence of a PCA once they were set up. I find on balance that Ms Halvorsen took it upon her self to undertake tasks that she was not required to do as assessed by a registered nurse.
There is much evidence on the question of increased workload and, in particular, the number of high care patients at Cooloola. Ms Halvorsen gave evidence in general terms about increased workload including the introduction as a trial in early October 2008 10 minute showers for 3 residents, the increased requirement of answering buzzers, and that overall the care needs of residents increased. After hearing the detailed evidence adduced at trial on this issue by the employer, she sought to explain the increased care needs by saying that even though residents may have been classified as low care “by the government”, in her view their actual care needs either teetered on the verge of high care or were in fact high care. Overall, I did not find Ms Halvorsen to be a satisfactory witness. In my view her evidence should be treated with caution particularly given the different versions she has given as to when problems started at work in this respect. Having said that it must be born in mind that the onus in this appeal rests with the employer.
Q-COMP called two lay witnesses in support of Ms Halvorsen’s claim. Ms Selby worked at Cooloola from 2005 to January 2009 and now works in another aged care facility. Like Ms Halvorsen, she said in general terms that the workload was heavy, that she often had to stay back to complete her tasks without overtime pay and that 10 minute showers were not really successful. She was always anxious for more shifts but none were available so she left. In response to a question during cross examination as to the outcome of her workers compensation claim against the employer, at first she claimed to have no knowledge of it but then later conceded that her claim had been rejected by WorkCover, that her review to Q-COMP was unsuccessful and that she has appealed that decision. I did not find Ms Selby to be a satisfactory witness and her evidence should be treated with caution. She appeared to be quite guarded in giving evidence. I accept the employer’s submissions that on the question of increased workload, like Ms Halvorsen’s, her evidence was an assertion expressed in general terms.
Ms Sargeant who currently works at Cooloola gave brief evidence. She spoke to registered nurse Pat Lea in July or August 2008 about unpaid overtime and threatened to go to the Industrial Relations Commission. Ms Sargeant was encouraged not to do so. A couple of months passed and then she spoke with Mr Barrow who organised a meeting held November 2008 and attended on 8, 9 & 10 December 2008 to look at changes. Ms Sargeant was not sure if the 10 minute shower trial was for 2 or 3 residents but came to the view that it was not successful. She said work was constant i.e. it did not increase of decrease during the period under consideration. Her evidence essentially focussed on unpaid overtime and the 10 minute shower trial. She also confirmed, rather reluctantly, that the registered nurse was responsible for assessing the care needs of residents and preparing care plans. On the question of increased workload, in my view Ms Sargeant’s evidence does not greatly assist Ms Halvorsen’s assertions.
On the other hand, the employer called detailed evidence not only from Ms Goodall but also from Ms Stephan who I also found to be a most impressive witness weathering quite spirited cross examination. Her evidence is quite lengthy and it is not intended to reiterate all of it suffice to say that in referring to exhibits 13, 14 & 15, I accept it as being probative of the fact that, in the main, most residents were classified as low care, that there was under 100% occupancy in Cooloola in the period under consideration, and that staffing levels significantly exceeded the industry standard of 80%[32] supporting the view that, subject to minor exceptions, workloads for Cooloola were satisfactory. This is consistent with Ms Goodall’s evidence also. I reject Q-COMP’s submissions that the figures in exhibits 13, 14 & 15 have been manipulated by the employer to suit its case before this court or at all[33]. This is despite some discrepancy with reports from “The Aged Care and Accreditation Agency Ltd” in exhibit 7. I accept the explanations for this discrepancy from Ms Stephan in particular where she swore under oath that this happens not infrequently and all the employer can do is to ring up that agency and seek to correct it but usually nothing is done. She recounted another recent discrepancy. The authors of the documents in exhibit 7 were not called to give evidence.
[32] This is a percentage of staff wages to RCS/resident income – see exhibit 13;
[33] See paragraph 6.3 submissions for Q-COMP;
As the regional manager for the employer, Ms Stephan was responsible for signing off on data and figures in exhibits 13, 14 & 15 prepared by the employer’s accountant which are submitted to the Department of Health and Ageing on a monthly basis. While she did not prepare those figures herself, as the authorised delegate for the employer in dealings with the Department of Health and Ageing, she checked those figures before signing off on them and before submission to that department. If they were not correct she would take steps to rectify them. By then signing them, she has adopted them as her own documents.
On the question of workload, Ms Goodall conceded that at least one resident frequently used the buzzer in mid 2008. Ms Sargeant raised this with her in mid October 2008. Ms Goodall held a staff meeting. Her strategy in that respect was to focus staff on preventative actions such as foreshadowing possible needs while in their room and inquiring if there was anything they need before leaving their room. Logs were to be kept of the number of times the buzzer was used. Further, she held a residents meeting to resolve the issue. This was successful except for one male resident with whom she spoke to personally. It appears this did not fully resolve as a result. I accept Ms Goodall’s evidence. The test for determining reasonableness is whether management actions were reasonable at the time. Management action need not be perfect with the benefit of hindsight and in circumstances where the management actions taken were ultimately unsuccessful. I find that Ms Goodall’s management actions in this respect were reasonable and taken in a reasonable way.
As an example, Ms Goodall said there was a patient who had a stroke and went to hospital and who returned with the expectation that she would not live for very long. She did in fact live longer than anticipated and this created extra work burdens on staff. Ms Goodall said that overall there were only about 4 high care residents at Cooloola at any given time. Two of those were respite and the other two were assessed residents. She strenuously disagreed with the notion that there were 9 or 16 high care residents there at any given time. Q-COMP’s submission that Ms Goodall agreed that if there were a great number of high care patients “we could not manage them at all” is prefaced on the basis that there was a great number of high care patients[34]. The evidence which I accept from Ms Goodall and Ms Stephan is that there were not. I respectfully reject that submission.
[34] Paragraph 6.4 submissions for Q-COMP;
A trial of 10 minute showers was instated in early October 2008 for 2 residents according to Ms Goodall and 3 patients according to Ms Halvorsen. Ms Sargeant was unsure of this although Ms Selby said 3. For reasons previously outlined, I prefer the evidence of Ms Goodall on this point. I accept that Ms Goodall set this up as a trial and invited feedback from Ms Halvorsen to see how it goes. She received no feedback from Ms Halvorsen and there were no complaints until a subsequent meeting. On 28 October 2008 a staff meeting was held. There was an agenda. In general business Ms Halvorsen raised concerns about the 10 minute showers in a vigorous way. I noted that Ms Halvorsen was quite passionate on this topic when giving evidence and was vehemently opposed to 10 minute showers of those 2 or 3 residents. She probably presented in at least a similar way at the meeting[35]. According to Ms Halvorsen and submissions for Q-COMP, Ms Goodall in reply “[spoke] to the [Ms Halvorsen] in a curt and offensive manner”[36]. I agree with submissions for the employer that this overstates the position although I accept that Ms Goodall was upset because no-one had provided feedback to her on the issue. This resulted in Ms Halvorsen walking out of the meeting. It is not disputed that, through another employee, Ms Goodall invited Ms Halvorsen back to the meeting but she refused. It appears no other employee had any difficulty at that meeting. Ms Halvorsen worked the rest of her shift that day and the next day without any issues being raised by her. That was her last day of work at Cooloola. In my view, in the absence of prior complaint from Ms Halvorsen on this issue when she was previously invited to do so when it was first implemented as a trial some weeks earlier and the manner in which she most likely raised the issue for the first time at the meeting in the presence of all, the actions of Ms Goodall in reacting the way she did when Ms Halvorsen raised the issue about the 10 minute showers and then inviting her back in were reasonable in the circumstances. To an extent this view is supported by what she told Dr Apel who simply referred to the supervisor, presumably Ms Goodall, ignoring the issue[37]. There was no mention of being offensive. Also, I note in her statement supporting her application for compensation[38] Ms Halvorsen said:
…but felt I did not get a sympathetic hearing from [Ms Goodall] in the meeting and she was annoyed people hadn’t brought it to her attention before ….
There was no mention of offensive behaviour. In my view Ms Goodall did not conduct herself in a perfect way with the benefit of hindsight but this is not the test. Everyone is human. Ms Goodall’s actions were reasonable and taken in a reasonable way at the time.
[35] This is supported by what she told Dr Apel at page 2 of exhibit 9 “she was very upset about having 10 minute showers’;
[36] Paragraph 7.4, point (2) on page 11submissions for Q-COMP;
[37] Exhibit 9 at page 2, point 2;
[38] Exhibit 1;
Given the overall evidence on workload, while I accept that generally speaking there was not a problem with workload issues, there were instances which increased workloads from time to time e.g. the resident who came back from hospital requiring high care and not expected to live for very long but in fact did. This affected Ms Halvorsen and contributed to her condition. However, I accept Ms Goodall’s evidence that steps were put in place to accommodate these instances. I find that the actions of management in dealing with any excessive workload due to these specific instances were reasonable and taken in a reasonable way.
In coming to that conclusion I note that much was made by Q-COMP of Mr Barrow’s report (exhibit 8) focussing in particular on some aspects of his recommendations. After Mr Barrow itemised the complaints from staff on page 1 of that report, at page 2 under “Observations” he noted, among other things:
1.The workload of PC staff was solid but generally manageable. Staff reports varied as to the level of workload and whether or not it was manageable. Staff felt that the recent changes have made a positive impact on their workload. On a scale of 1 to 10 staff rated their normal workload around the 5 to 6 level.
2.There are clearly busy periods in shifts around meal times and morning showers etc but this is balanced by some quieter times mid morning and mid afternoon. The overall workload could be more effectively managed by the introduction of the recommendations below. At this stage there does not appear to be sufficient workloads that would require permanent additional resources but overtime and temporary resources should be made available to manage excessive workloads. …….
5.Staff report that they are generally able to take their breaks but they might be delayed if there is a particular issues [sic] with a resident.
It appears to me that in Mr Barrow’s opinion, generally speaking, workloads were quite manageable and that he was simply expressing what ought to occur if workloads on occasions become excessive and was suggesting ways for improvement. This is supported by the findings of the Aged Care and Accreditation Agency Ltd on 5 March 2009 (exhibit 7) to the effect that the employer had complied with providing adequate human resources to ensure that services were delivered appropriately at that time: see item 1.6 Schedule 2 Quality of Care Principles discussed at paragraph 18 herein. According to evidence adduced for the employer, workload and staffing had not materially changed from when Ms Halvorsen worked at Cooloola. However, I find that there were spikes in workload from time to time which impacted on the workload of Ms Halvorsen. However, in accepting Ms Goodall’s evidence I am of the view that these were managed in a reasonable way.
The next issue is the question of unpaid overtime. It is not disputed that PCAs stayed back after their shifts in varying periods from 15 minutes to 1 hour. However, the reasons for this vary. Ms Halvorsen and her then colleagues who gave evidence said they had to catch up on all tasks they could not complete in their rostered times including paperwork. The sense from Ms Goodall’s evidence is that the PCAs were not conducting their duties in an efficient manner and were spending too much time socialising with the residents. This is supported to an extent by what Ms Halvorsen told Dr Apel[39]:
She indicated that she very much enjoyed working with the residents and had a strong personal relationship with them. However, work pressures were such that there was no time to talk or relate to them and treat then as human beings
[39] Exhibit 9, page 2 at point 5; partly referred to at paragraph 6.7 submissions for Q-COMP;
Back in 2007 two previous employees involved the Industrial Relations Commission in recovering pay for hours worked in excess of their rostered hours. It is not disputed that they received a payout and also other PCAs received moneys as well for extra time worked. Ms Goodall and also apparently Ms Sargeant had spoken to Mr Barrow in October 2008 about this and Mr Barrow attended a staff meeting on 27 November. Along with another human resource person he attended Cooloola on 8, 9 & 10 December 2008 to observe operations and then prepared a report dated 17 December 2008 (exhibit 8). Mr Barrow observed that staff did stay back after their rostered hours for an average of 30 minutes and that they were not paid for that. I note from her timesheets in exhibit 6 that Ms Halvorsen was paid some overtime for working through lunch. Mr Barrow supported the payment of overtime “when there are genuine workload issues”. By saying that, in my view he is not saying that overtime was not available for genuine claims up to that point in time. It appears issues arise as to what is a genuine claim for overtime when PCAs stay back because they have not completed expected outcomes that, in the opinion of Ms Goodall, ought to have been completed within the rostered time. I would tend to accept the view that the employer would be careful in this exercise particularly given the 2007 issues with the Industrial Relations Commission. There was no mention of this ground in Ms Halvorsen’s original claim for compensation or before Q-COMP’s review officer although she did mention it to Dr Apel in the context of the excessive workload.
In my view, in accepting the evidence of Ms Goodall and Mr Barrow, payment of overtime would be considered for genuine claims. It is not for the worker to choose to stay back for any reason and then expect to be paid as a matter of course. In my view, that is why applications for payment of overtime have to be considered by the employer to see if they are legitimate. One would have thought that if a worker saw the need to stay back, the worker would get a clearance from the supervisor first if possible. I note from her timesheets that overtime has been paid to Ms Halvorsen for working during lunch periods. This demonstrates that the employer does pay overtime for legitimate claims. While at first blush and as a bald proposition it would be unreasonable to expect workers to work unpaid beyond their rostered shift, this assumes that that time is reasonably claimable. In his report Mr Barrow, as a human resource manager, was simply outlining ways to improve efficiencies which in his view would achieve time savings of 45 to 60 minutes per day for each staff member to address the perceived grievances articulated at the meeting on 27 November 2008. As referred to earlier however, Mr Barrow’s general observations were that workload of PCAs was generally manageable – there were busy periods and quieter periods.
I am satisfied that the employer has established on the balance of probabilities that legitimate claims for compensation would be paid. I reject Q-COMP’s submissions in this regard.
Conclusion
For reasons above, the factual bases for many of the stressors submitted by
Q-COMP have been rejected. I am satisfied on the balance of probabilities that the employer has discharged its onus of proof.
However, while I have found that, consistent with Mr Barrow’s report (exhibit 8) that the general workload was satisfactory, I have found that there were spikes in workload due to unusual circumstances relating to individual residents from time to time e.g. the elderly resident who returned from hospital to die. I accept the opinions of Mr Nemback and Dr Apel to the extent that these instances of increased workloads were causative of Ms Halvorsen’s condition. However, I have preferred the evidence of Ms Goodall to the effect that these instances were reasonably managed in the circumstances. I find that this constituted management action and that it was reasonable and taken in a reasonable way.
Further, while I accept that the actions of Ms Goodall at the 28 October 2008 meeting and in respect of the buzzer issue were management action, such action was reasonable and taken in a reasonable way. Management action must be reasonable and taken in a reasonable way. The relevant action does not have to be perfect and that it should be recognised that systems in place are not perfect and they can fail from time to time.
In Summary
In conclusion on balance I find:
· Ms Halvorsen suffered a personal injury variously described but includes an adjustment disorder with depressed mood;
· That injury arose out of or in the course of Ms Halvorsen’s employment and that her employment was a significant factor to that injury.
· The 2007 incident was not causative of Ms Halvorsen’s personal injury.
· The workload of PCAs was generally manageable.
· The time Ms Goodall was off work due to a fractured leg did not compromise the operations of Cooloola to a great extent.
· Legitimate claims for overtime would be paid.
· There was excessive use of buzzers by residents which was causative of Ms Halvorsen’s condition.
· There were spikes in increased workload which were causative of Ms Halvorsen’s condition.
· What occurred in the 28 October 2008 staff meeting was causative of Ms Halvorsen’s condition.
· The actions of the employer in respect of dealing with spikes of increased workload, and Ms Goodall in respect of the 28 October 2008 meeting and the buzzer issue were management action;
· The management actions above were reasonable;
· The management actions above were taken in a reasonable way.
Conclusion
In view of my findings, pursuant to the section 558(1)(c) of the Act I set aside the decision of Q-COMP dated 11 May 2009 and substitute the decision that Ms Halvorsen has not sustained an injury as defined in the Act. Therefore, compensation is not payable to her under section 108 of the Act. This means the appeal by the employer is successful.
I grant liberty to apply to either party on 3 clear business day’s notice for any consequential orders including costs if the parties cannot agree.
Paragraphs 3 to 11 submissions for the employer; paragraphs 5.4 to 5.10 & 7.1 submissions for
Q-COMP;
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