Adermann v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 221

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Adermann v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 221 PARTIES: OTHER: Adermann, Sam (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) BHP Coal Pty Ltd (Employer) by leave to appear and be heard CASE NO: WC/2013/305 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 22 December 2014 HEARING DATES: 19, 20, 21 May 2014 16 June 2014 – Employer's Written Submissions 2 July 2014 – Appellant's Written Submissions 17 July 2014 – Respondent's Written Submissions MEMBER: Deputy President Kaufman ORDERS : 1. The Appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the costs of the Respondent in an amount to be agreed between the parties, or failing agreement, on application to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury arose out of or in the course of employment - whether employment a significant contributing factor - appeal dismissed CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 APPEARANCES: Ms L. Willson, of Counsel instructed by Walker Pender Lawyers for the Appellant. -- 1 of 5 -- 2 Mr S.P. Sapsford, of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Mr G.C. O'Driscoll, of Counsel, instructed by Mullins Lawyers for the Employer, BHP Coal Pty Ltd Reasons for Decision [1] Mr Sam Adermann has appealed the decision of Simon Blackwood (Worker's Compensation Regulator), formerly Q-Comp, confirming a self-insurer's decision to reject his application for worker's compensation. [2] The appellant commenced work at the Saraji Mine of BHP Coal Pty Ltd in January 2012 as a Mine Employee Operator.1 [3] In the appellant's own words: "…a reasonable man looks at the world and sees how he can fit in, the unreasonable man looks at how he can adapt the world to himself, therefore it's the unreasonable man that effects change and I tend to be one of those, I tend to get in and shake things up…"2 [4] Given that approach, it is hardly surprising that the appellant, not long after commencing work, found himself at odds with his fellow workers and with management and eventually suffered a personal injury, a psychiatric or psychological disorder, variously described as severe depressive episode and minor anxiety, DSM IV psychiatric illness of depression and an adjustment disorder with mixed anxiety and depressed mood. [5] Towards the end of January 2012 the appellant took issue with two of his co-workers smoking cigarettes in his presence. He declined to get into a vehicle whilst they were smoking. After making some comments they put out their cigarettes. The appellant later raised the issue with Amos Lawson, his superintendent, who wanted to get the appellant and his two co-workers together and facilitate a discussion to resolve the disagreement.3 However this discussion did not take place. Although the appellant sought to make something of the issue of fellow employees smoking in his presence, the matter was resolved amicably relatively soon after it had arisen when the appellant and Mr Woods, one of the smokers, shook hands on it. [6] The appellant contends that he was unfairly criticized in the performance of some of his duties, especially in relation to his operation of dump trucks. He was spoken to in relation to the dumping of heavy / large rocks, which he was not performing in the approved manner. He was also spoken to in respect of his failure to follow 1 Exhibit E3. 2 Exhibit A6, p 25. 3 T1 – 11/12 to 11/15; T-1 – 15/27 - 16. -- 2 of 5 -- 3 normal procedure by grading against the flow of other mine traffic. After having once been admonished he repeated the offence the following day.4 [7] The appellant contends that he was discriminated against in that he did not receive adequate training in relation to the excavator and that he was not given equal time operating this piece of equipment. The documentary evidence is to the contrary.5 [8] The appellant apparently fell asleep while operating heavy machinery and ran into a bund wall. The employer arranged for the appellant to be transferred to permanent dayshift with no corresponding decrease in pay despite the fact that this usually was a lesser paid shift.6 [9] In May 2012, the appellant hurt his back, his wife was dismissed from her employment by the employer and there had been an interaction between the appellant and Mr Lawson regarding the operation of the excavator.7 [10] On 9 June 2012, after having fallen asleep while driving a grader on 8 June 2012, the appellant saw his general practitioner and told him that he was experiencing a lot of stress at work, that he fell asleep while he was driving, that he was sleeping poorly at night and he was unable to concentrate.8 It should also be noted that during this time the appellant was also suffering a chest infection which he says commenced in approximately January 2012 and was not under control until September that year.9 [11] The appellant tendered a report of Dr Martin Nothling, who had examined him at the employer's self-insurer's request. The doctor had been provided with several reports including one from Dr Paul Potgeiter, a registered psychologist who saw the appellant on 26 June 2012 and, according to Dr Nothling, who stated: "…that [the appellant] presented with a severe depressive episode and minor anxiety precipitated by his wife's loss of employment and his feeling of isolation at work. He has significant sleep disturbance. He finds it difficult to work nightshift and be motivated at work."10 [12] The termination of his wife's employment in May 2012 was a difficult time for the appellant. Although she obtained other short term employment at the mine, with the contractor, their rosters would no longer line up and they would only have three days off work together in the following month. He was worried about his finances after his wife lost her job and at that time they were experiencing extreme financial hardship, which caused strain between them.11 [13] Having regard to the report of Dr Potgeiter, supplemented by the evidence of Dr Sharon Matthews, the appellant's treating general practitioner, who also noted that the appellant's wife, who had attended a consultation with him, "feels that it 4 T2 – 32/9 - 34/40. 5 Exhibit E5. 6 T2 - 4/17 to 4/34. 7 T1 – 63/17 to 64/7. 8 T1 – 65/4 to 65/24. 9 T1 – 37/5 to 38/30. 10 Exhibit A15, p 14. 11 T2 – 80/25; 81/14. -- 3 of 5 -- 4 started when she was sacked."12 I am satisfied that the appellant sustained a personal injury, a psychiatric or psychological disorder in May/June 2012. However, for the appellant to succeed, he must satisfy me on the balance of probabilities that his personal injury, his psychiatric or psychological disorder, arose out of, or in the course of, his employment and that the work was a significant contributing factor to the injury. [14] Dr Nothling, in cross examination accepted that the smoking issue in February 2012 was an unlikely contributor to the appellant's psychiatric injury13 and that the reasonable instructions by the employer regarding the operation of machinery were also unlikely contributors.14 [15] The quote set out in paragraph 3 of these reasons was taken from a transcript of a conversation that the appellant had with Mr Lawson on 19 June 2012 and which the appellant recorded.15 The conversation opens with the appellant saying: "Horse I've fallen in a bit of a whole – depression… It invariably happens when I can't resolve something. You know I have been here six months and some things are just not working out, my wife getting the flick, she is working somewhere else now, you know…"16 This quote was read to Dr Nothling who concluded by expressing the opinion that whilst the matters complained of by the appellant; the smoking, the correction by the employer and the operational time on the excavator may have contributed to the appellant's psychiatric injury, they were not in the circumstances significant; it was largely the dismissal of his wife that caused him to suffer his personal injury, the psychiatric or psychological disorder.17 [16] I accept Dr Nothling's conclusion. It is tolerably clear to me that the appellant's decompensation was largely due to the events in or around May and June 2012, particularly the termination of his wife's employment and the financial and other stress associated with his long-standing chest infection. [17] On the facts as I have found them, I am not satisfied that the appellant's psychiatric or psychological disorder arose out of or in the course of his employment. In my view it arose as a result of the termination of the employment of his wife and the resultant disruption to their lifestyle and plans. [18] If I am wrong as to how the personal injury arose, I nevertheless, cannot be satisfied that the appellant's employment was a significant contributing factor to it. As I have said, in my view the loss of his wife's employment and the circumstances surrounding that were the only significant contributing factors to his injury. In my view to the extent that the matters of which the appellant complained contributed to his injury, with the exception of the smoking issue which did not significantly contribute to his injury, they arose out of or in the course of reasonable management 12 Exhibit A11. 13 T3 – 5/29 to 5/42. 14 ibid. 15 Exhibit A6. 16 Exhibit A6, p 18. 17 T3 - 5/11 - 16/20. -- 4 of 5 -- 5 action taken in a reasonable way. The employer not only acted reasonably, given that the work was being performed at a mine site, it acted appropriately in the manner in which it dealt with the appellant regarding the dumping issue and the grading against the flow of other mine traffic issue. [19] Accordingly, s 32(1) of the Act applies. [20] In the circumstances the appeal must be dismissed. The appellant is to pay the respondent's costs. I so order. -- 5 of 5 --