3

[Extract from Queensland Government Industrial Gazette,

dated 10 August, 2007, Vol. 185, No. 15, pages 328-331]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against decision of Q-COMP

Mario Lopez-Aragon AND Q-COMP

(WC/2006/58)

COMMISSIONER EDWARDS / 26 July 2007

DECISION

In this matter Mario Lopez-Aragon (the appellant) made application to WorkCover Queensland (WorkCover) on 1December 2005 for compensation for an "injury" described as psychiatric/psychological. Mr Lopez-Aragon indicated the injury happened over a period of time whilst in the employment as an Electrical Engineer with Transcale Pty Ltd (the Company) and whilst there was a lack of resolution of work-related issues.

At the outset of the hearing the parties agreed that Mr Lopez-Aragon was a worker. At the same time Q-COMP distinctly disputed that Mr Lopez-Aragon sustained a personal injury. It was also stressed that the remainder of the definition of "injury" was relevant particularly insofar as it concerns "reasonable management action taken in a reasonable way by the employer in connection with the worker's employment".

The statutory review unit, Q-COMP and WorkCover both found that Mr Lopez-Aragon's claim was one for rejection for the same reasons, that there was no injury and that Mr Lopez-Aragon had not proved management action was unreasonable and taken in an unreasonable way.

As outlined by the respondent, it is for the appellant to prove that relevant management action was both unreasonable and taken in an unreasonable way. In Gregory Ivey v WorkCover Queensland (1999) 162 QGIG 16 392-393, Hall P. stated:

"I do not accept the appellant's submissions that the burden of proof fell upon the respondent. On a fair reading of s.34 it does not impose a general liability to which s. 34(4) 'provide[s] for some special ground of excuse, justification or exculpation depending upon new or additional facts'. Section 34 states 'the complete factual situation which must be found to exist before anyone obtains a right - - under the provision'. Compare Vines v. Djordjevitch (1955) 91 CLR 512 at 519. The onus is born by the appellant (worker).".

The Commission records that as the appellant represented himself adequate time was permitted for the preparation of all aspects of his case including witnesses. In relation to submissions the appellant advised of the difficulty he was experiencing in collating and preparing submissions. As a result the Commission, without objection by the respondent, extended the date for submissions to 19 July 2007. The parties were advised that if submissions were not received from the appellant by that date the Commission would proceed to release a decision. The appellant did not lodge submissions. On 20 July 2007, Q-COMP advised that they would not be preparing submissions in reply as the appellant had not provided submissions. On 25 and 26 July 2007 emails were received from the appellant. In this regard the Commission had already decided the procedures to be followed in the event that the timetable determined on 23 May 2007, without objection by the parties, was not complied with.

Final submissions are a summary of the evidence, documents and material and could be seen as of assistance to the decision-maker. Submissions are not the documentation upon which a decision is based. Accordingly, it is recorded that the appellant is not placed at a disadvantage because of this fact for whatever reasons he did not make final submissions.

The evidence of Dr Prassad, a General Practitioner, revealed that "stress can be regarded as a psychological injury" but under cross-examination he admitted that that wasn't so. Dr Prassad is not a specialist and there is no evidence that he has had any particular expertise or experience in assessing and diagnosing psychological or psychiatric injuries. Dr Prassad prescribed Mr Lopez-Aragon a sleeping tablet, but at no time did he prescribe him anti-anxiety or anti-depression drugs, nor did he send him to a psychologist or psychiatrist. Dr Prassad did not appear to be concerned about Mr Lopez-Aragon's psychological well-being.

Evidence was given by Ms Challee O'Reilly, a Psychologist of ten years with an honours degree and partial completion of her PhD in clinical psychology. Ms O'Reilly has completed approximately 400 assessments for WorkCover. The Commission agrees she provided very balanced and clear evidence and obviously did her best to respond fully to the appellant in his cross-examination. As outlined by the respondent, Ms O'Reilly saw Mr Lopez-Aragon for four hours on the first day even though he was booked in for three hours and then continued on the second day for a couple of hours. The length of time for the interview indicated the appellant was not rushed in any way and Ms O'Reilly did not record the appellant's assertions about racial slurs from his employer against him.

Ms O'Reilly indicated that Mr Lopez-Aragon did not appear anxious or depressed even though he was seen only one month after he first saw Dr Passad. It is recorded that Ms O'Reilly saw Mr Lopez-Aragon as did Dr Warlow, while DrPrassad was still seeing the appellant and writing medical certificates, which therefore does not disadvantage DrPrassad in terms of timing. Ms O'Reilly stated the appellant in fact appeared angry, agitated and seemed aggressive in his interpersonal style even when not talking about workplace issues.

Ms O'Reilly also stated in cross-examination that there is no grey area in Mr Lopez-Aragon's case unlike in some patients where they were close to the line. She was quite certain that there was no clinical diagnosis.

Dr John Warlow, Psychiatrist provided evidence and indicated that he had been a practicing psychiatrist since 1979. Dr Warlow examined the appellant approximately eight weeks after the appellant first saw Dr Prassad and whilst DrPrassad was still seeing the appellant and still providing Q-COMP medical certificates for him. Dr Warlow opined in his report (Exhibit 6) that whilst it could be argued that the appellant had a brief period of an adjustment disorder, he concluded that he had no condition whether under DSM-IV or otherwise. In his evidence, Dr Warlow confirmed that "there were symptoms, they were not clinically significant". He also said in evidence that his conclusion was that the appellant did not have a psychological or psychiatric injury, whether under DSM-IV or otherwise.

In cross-examination, Dr Warlow stated that the symptoms were confined to the work situation and did not extend to other areas. He did not agree that if he examined the appellant at the time when the events were happening at work that he would have diagnosed an injury.

In submissions, the respondent made reference to Thorsten Groos v WorkCover Queensland (Groos case), 28 June 2000, Warfield I.M., (i.e. at first instance), wherein there was support for the appellant having a personal injury in the form of expert evidence from Psychiatrist, Dr Peter Mulholland. In the doctor's report he had noted a range of symptoms including feeling depressed and having nightmares. Dr Mulholland opined in this report that:

"The sum total of his psychiatric problems are probably not sufficient to warrant a formal diagnosis of psychiatric disorder and is best regarded as a non-psychopathological dysphoric reaction to bio-psychosocial stress which is all readily understandable given the circumstances of his life.".

In the Groos case, Dr Mulholland opined that the dysphoric reaction gave rise to a 10% psychiatric impairment. This was a very important feature of the Groos case with Noonan I.M. stating:

"The appellant's argument is that to ignore the degree of impairment in deciding whether or not there is an injury defies logic, because if the AMA guide is a measure of the degree of impairment, then by definition, it must be relevant as a consideration as to whether or not there is an injury. The appellant further argues that definition and incorporation of that measure of impairment into the whole concept of the WorkCover legislation excludes the argument of Dr Chalk that all you have to do is look at DSM4 and say whether there is or isn't a classified psychiatric illness, not an injury and not a degree of impairment, but an illness.".

For the appellant there is no evidence at all of a percentage psychiatric impairment. Based on the evidence and submissions, including the Groos case, the appellant has not satisfied the Commission that on the balance of probabilities he had, at any time, a personal injury.

The employer/employee relationship appears to have broken down as a result of the meeting on 27 September 2005, the first KPI meeting. This meeting arose because management implemented a formal system of bonuses. The KPI scheme afforded workers a chance to earn more bonus money than they had previously and they could work towards satisfying certain (KPI) criteria. In evidence, it was outlined the scheme was for everyone and Mr Valmadre didn't think that Mr Lopez-Aragon was the only worker to have KPI 3 and 4 in his package reviews. Mr Grayson outlined he thought that the appellant, "was not singled out with any of these KPIs. All of the guys that travel and represent the Company had the same KPI". Management attempted to hold further discussions and appoint a mediator but the appellant made reference to matters raised in the first KPI meeting. The Commission is satisfied that management made every effort to address and reply to the matters. The appellant had minimum regard for the document that was handed to him (Exhibit 1). Both Mr Valmadre and Mr Grayson gave evidence that it was the appellant who requested examples of what management meant when KPI's 3 and 4 were read out by them to him at the first meeting. In this regard the Commission accepts the evidence of Mr Valmadre and Mr Grayson.

The Commission accepts the claim that Mr Valmadre was "putting me down regarding my ethnicity" is a recent invention by the appellant designed to prejudice the employer. The appellant made no reference to ethnic claims in his application for compensation, in his detailed statement to Ms O'Reilly, Psychologist or to Dr Warlow.

From the evidence, the Commission accepts that management was anxious to ensure that they did not promote a workforce that tolerated demarcation. Such was not accepted by the appellant who was reluctant to help colleagues. This was especially so when he was requested to assist with the lifting of the sea doo boat trailer.

The incident over the episode in Chile is also of concern to the Commission as well as the issue of the attendance at the Christmas function.

The appeal is dismissed as the evidence of two specialists does not support the view of the appellant that he suffered an injury. The details outlined of the management action taken confirm that reasonable management action was taken in a reasonable way.

The application is refused.

K.L. EDWARDS, Commissioner.

Hearing Details: / Appearances:
2006 19 October
27 November
2007 20, 21 February
12, 13 March
23 May / Mr M.E. Lopez-Aragon on his own behalf.
Mr A. Kitchin instructed by Ms R. Jamieson of Q-COMP on behalf of the Respondent.
Released: 26 July 2007

Government Printer, Queensland

ÓThe State of Queensland 2007.