18
[Extract from Queensland Government Industrial Gazette,
dated 10 August, 2007, Vol. 185, No. 15, pages 310-328]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against a decision of Q-COMP
Hastings Deering (Australia) Limited AND Q-COMP
(WC/2005/16)
DEPUTY PRESIDENT BLOOMFIELD / 30 July 2007Appeal against a decision of the Review Unit, Q-COMP - Witness evidence - Witness credibility - Alleged stressors - Whether relevant management action involved reasonable management action taken in a reasonable way - Effect of s.32(5) of the Act - Appeal upheld.
DECISION
Introduction
This decision relates to an appeal by Hastings Deering (Australia) Limited (the Appellant) pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Review Unit, Q-COMP (Q-COMP) dated 2 December 2006 in which Q-COMP set aside an earlier decision of WorkCover to reject a claim for workers compensation by a Mr Miles Bettridge. In doing so, Q-COMP accepted that Mr Bettridge had suffered an "injury" within the meaning of s. 32 of the Act and that the exceptions under s. 32(5) of the Act were not applicable.
Relevant Legislation
Section 32 of the Act provides:
"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 -
...
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation.
...
(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) action by the Authority or an insurer in connection with the worker's application for compensation.".
In determining whether a worker has suffered an injury for the purposes of the Act it is necessary to consider four questions:
(a) has the worker suffered a "personal injury"?
(b) did that personal injury arise out of, or in the course of, employment?
(c) was employment a significant contributing factor to the injury?
(d) is the injury a psychiatric or psychological disorder that arose out of, or in the course of, reasonable management action for the purposes of s. 32(5)?
The Appellant accepts that Mr Bettridge was a "worker" within the ambit of the legislation. It also accepts that he suffered a "personal injury" in the nature of a major depressive disorder (DSM-IV, 296.32). However, the Appellant does not accept that Mr Bettridge's injury arose out of, or in the course of, employment of which the employment was a significant contributing factor. Further, the Appellant argues that even if the Commission determines that MrBettridge's injury arose out of, or in the course of, employment where the employment was a significant contributing factor, the injury is, nonetheless, withdrawn from the operation of s. 32 of the Act as a result of the application of s.32(5).
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. It is the Appellant who bears the onus of proof on the balance of probabilities (see State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne 172 QGIG 1447; Qantas Airways Limited v Q-Comp 181 QGIG 301). In the latter case, Commissioner Blades explained the onus or burden of proof where an employer is the Appellant, as follows:
"...(an employer is required to) raise, by way of admissible evidence, those matters upon which it relies to escape liability. The worker is not a party to the proceedings so it is probably not right to say that the worker has any onus of proof but the factual situation must be found to exist as will bring the worker within the provisions of the Act. That factual situation must be on the balance of probabilities.".
Because the matter is a hearing de novo, not a review of Q-COMP's decision, it is also necessary for Q-COMP to establish on the balance of probabilities that the worker did suffer a personal injury that arose out of, or in the course of, his employment and that the employment was a significant contributing factor. It is also necessary to establish that the exceptions at s. 32(5) do not apply such as to withdraw the injury from the operation of the Act.
Evidence
The Appellant called evidence from the following persons:
· Mr Ray Evans, formerly Mr Bettridge's Leading Hand, employed by the Appellant at Rockhampton;
· Mr Bradley Haynes, the Parts Operations Manager employed by the Appellant at Rockhampton;
· Mr Terrence Dare, the Parts Supervisor employed by the Appellant at Rockhampton;
· Mr Paul Hicks, a former Warehouse Leading Hand employed by the Appellant at Rockhampton;
· Mr Wayne Fellowes, an Inventory Control Clerk, and previously a Warehouse Leading Hand, employed by the Appellant at Rockhampton; and
· Mr Scott Unwin, a Leading Hand employed by the Appellant at Rockhampton.
Q-COMP called evidence from the following persons:
· Mr Miles Bettridge, the injured worker;
· Mr Matthew Cunningham, a warehouse employee employed by the Appellant at Rockhampton;
· Dr Alan Keen, a Psychologist who conducted a clinical assessment of Mr Bettridge, on 6 July 2005, on the referral of WorkCover;
· Mr Cliff McConnell, a self-employed courier driver who previously worked as a truck driver for CQX in Rockhampton;
· Mr Peter Tansley, a Diesel Fitter employed by the Appellant at Rockhampton and who previously occupied the position of Senior Union Delegate for the AMWU at that site; and
· Dr Vijay Prahlad, Mr Bettridge's family Doctor.
With the exception of Mr Hicks and Dr Prahlad, all of the other witnesses gave their evidence in person. This provided me with an opportunity to observe each witness closely and to observe their overall demeanour when giving their evidence. Such opportunity has assisted me to determine a number of issues in dispute, on the balance of probabilities, based upon my assessment of the credibility of each witness in the context of their own evidence as well as the evidence overall.
All of the evidence given by all of the witnesses is contained within the 509 pages that the case ran to. It is not my intention to attempt to summarise that evidence in this decision. Rather, I intend only to refer to particular parts of the evidence where it is necessary to do so in order to make findings of fact or to underpin such findings. In such circumstances I wish to make it clear that whilst I might only have referred to certain parts of the evidence in the course of this decision, I have, nonetheless, considered the whole of the evidence in arriving at my ultimate decision in this matter and not just the parts referred to.
The Stressors
In his report to WorkCover dated 8 July 2005 Dr Keen reported, inter alia:
"SECTION TWO: CLINICAL ASSESSMENT
2.1 Relevant background summary:
Mr. Bettridge stated that he has been working as a permanent full-time storeman at Hastings Deering (Australia Ltd) for approximately 5.5 years. During the past 6 months he gradually built up stress due to allegedly being harassed and abused by his supervisor. Mr. Bettridge stated that due to stress he has been experiencing at work he has been off work since 20/06/2005.
......
2.7 History of alleged events:
Mr Bettridge stated that during the past 6 months he built up stress due to the factors/incidents outlined in the following sub-paragraphs:
2.7.1 Mr Bettridge considers alleged harassment and abuse by his immediate supervisor as the prime reason for his stress (refer to paragraphs 1 to 6 of the claimant's statement).
2.7.2 The claimant was allegedly subjected to violence and threats from his supervisor (refer to paragraph 1 to 6 of the claimant's statement).
2.7.3 The claimant allegedly did not take any action to resolve the alleged matter of his being harassed and abused by his supervisor (refer to paragraphs 1 to 6 of the claimant's statement).
2.7.4 From the claimant's statement and the documents made available to me, it appears that concerns about the claimant's poor work attendance and subsequent meeting with management on 8/6/2005 have been another factor contributing to his stress (refer to paragraphs 5 to 6 of the claimant's statement).
......
SECTION THREE: STRESSORS/ALLEGATIONS
3.1 Personal Stressors
The claimant did not report any current or recent personal (non work-related) stress that could be likely to have contributed to his condition during the period which is the subject of this claim investigation. He denied that his wife's work commitment or any family health problems could have affected his psychiatric condition.
3.2 Work-related stressors
Mr Bettridge attributed his perceived stress to the following factors/incidents:
1. being allegedly harassed and bullied by his supervisor;
2. the management's inaction into the matter of the alleged harassment; and
3. the allegation concerning his poor attendance.
......
SECTION SIX: SUMMARY AND CONCLUSIONS
Mr Bettridge has been working as a storeman at Hastings Deering (Australia LTD) for approximately 6 years. During the past 6 months he reported being stressed due to being allegedly abused by his supervisor and allegations about his work attendance. On the basis of my assessment and the claimant's narration of his condition around the period which is the subject of this report, it appears that:
- The claimant was raised in an unstable family environment.
- He has been married for approximately 15 years and is in a good relationship with his partner and children.
- He reported that he is sociable.
- He considers his mother, his partner and children and his full-sister as individuals who would support him in time of difficulties.
- He has no family members with a diagnosed psychiatric condition.
- He has been on antidepressants for the past 6 years.
- He denied experiencing any current or recent psychiatric conditions.
- He appears to be vulnerable to psychological stressors.
- At the time of my assessment the claimant showed some moderate signs of depression.
- On the basis of my assessment and his narration of his condition it is likely that during the period that is the subject of the claim investigation he experienced symptoms of a Major Depressive Disorder (DSM-IV, 296.32). Limited symptoms of anxiety attacks were reported. Formal test results were also suggestive of psychotic symptoms, but there was not sufficient evidence available for independent diagnosis of a psychotic condition.
- It appears to me that his condition is of moderate severity.
- He appears to be vulnerable to psychological stressors.
- It appears to me that the claimant had a pre-existing endogenous (was not caused by external factors) condition.
- Also it seems likely that his pre-existing condition may have been aggravated by what he considers as being abused by his supervisor or being questioned about his attendance by the management.
- In order to determine a link between Mr. Bettridge's condition during the period that is the subject of this claim investigation and workplace factors, collateral information is required to evaluate the claimant's allegations.".
Was work a significant contributing factor?
As noted above, the Appellant challenged the finding that Mr Bettridge suffered an injury arising out of, or in the course of, employment of which the employment was a significant contributing factor. In doing so, the Appellant noted that Dr Keen had specifically reported to WorkCover that Mr Bettridge "did not report any current or recent personal (non work-related) stress that could be likely to have contributed to his condition during the period which is the subject of this claim investigation.".
The Appellant submitted that Mr Bettridge failed to disclose to Dr Keen several important facts in relation to his financial position and his marriage. In particular, counsel for the Appellant, Mr Dollar, indicated that Mr Bettridge conceded in cross-examination he had found out about his wife having an affair by 27 June 2005 but had not disclosed this fact to Dr Keen during their extensive interview on 6 July 2005. Further, Mr Dollar submitted, Mr Bettridge failed to disclose to Dr Keen his "dire" financial position which involved:
· the local council rates on the marital home being 2 years in arrears;
· his Visa card debt, in excess of $2,000, being in the hands of a debt collector;
· the mortgage on the marital home, in Mr Bettridge's sole name, defaulting 18 times in the 15 months leading up to July 2005;
· making an application to refinance his mortgage, with a new mortgage lender, on 11 May 2005 with MrBettridge's signature appearing on a page which also recorded that the rates were 2 years in arrears; and
· his personal finances being in a catastrophic position with the "Flexidirect" bank account he held in joint names with his wife being overdrawn for roughly 50% of the period between March 2004 and the date of the visit to DrKeen with the balance, at no time, exceeding $1,000.
The Appellant also highlighted that Dr Keen had agreed that:
· financial pressures often are a cause of depression (transcript p. 451, L35);
· it is important to define the work-related stressors and the non work-related stressors (p. 446, L25);
· he specifically raised the issue of non work-related stressors with Mr Bettridge during the interview on 6 July, 2005 (p. 448, L10-48) but Mr Bettridge indicated there were no non work-related stressors contributing to his condition (p. 449, L20-49); and
· if someone was suffering from depression, and there were severe financial pressures, he would expect those severe financial pressures to have played some role in the depression (p. 451, L37).