Biebrick v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 216

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Biebrick v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 216 PARTIES: Biebrick, Malcolm John (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/67 PROCEEDING: Appeal against decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 19 December 2014 HEARING DATES: 4, 5 and 6 August 2014 9 September 2014 - Regulator's Submissions 2 October 2014 - Appellant's submission MEMBER: Industrial Commissioner Fisher ORDERS: 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. Mr Biebrick is to pay the Regulator's costs of and incidental to the appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - appellant bears onus of proof - whether worker appellant has sustained a work related injury - evidence lay witnesses and medical witnesses - consideration limited to matters identified in stressors before decompensation - whether employment was a significant contributing factor to the injury - not satisfied the injury falls within s 32(1) - if injury falls within the meaning of s 32(1) of the Act it is not compensable because of the operation of the reasonable management action exclusion in s 32(5) of the Act - actions in relation to upskilling were reasonable and taken reasonably - other stressors not established on the evidence - appeal dismissed. -- 1 of 17 -- 2 CASES: Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 Fair Work Act 2009 State of Qld (Queensland Health) AND Q-Comp AND Beverley Coyne [2013] 172 QGIG 1447 John Labaj AND WorkCover Queensland (2003) 174 QGIG 370 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http:www.qirc.qld.gov.au Q-Comp v Parsons (2007) 185 QGIG 16 Australia Meat Holdings Pty Ltd AND Angela Merilyn Kennedy AND Q-COMP (2006) 181 QGIG 474 Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator) (No. 2) [2014] QIRC 072 Bowers v WorkCover Queensland (2002) 170 QGIG 1 WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] 170 QGIG 142 Peter James Croning AND Workers' Compensation Board of Queensland [1997] 156 QGIG 100 Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 49 Q-COMP AND Jennifer Jones (C/2010/51) - Decision <hppt://www.qirc.qld.gov.au> R v Whitbread (1995) 78 A Crim R 453 APPEARANCES: Mr M.J. Biebrick, the Appellant, in person. Mr A. McLean Williams, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). Decision [1] Malcolm Biebrick was employed as a Trainer by PARTEC Qld Pty Ltd in Townsville. PARTEC is the acronym for the Plastics and Rubber Technical Education Centre. PARTEC is a registered training organisation (RTO) providing training for 23 years in plastics and polymers. It has a training centre at Mt Gravatt, Brisbane employing about 13 employees. It also has a centre in Townsville where Mr Biebrick was the sole full-time employee. Mr Biebrick's wife, Jocelyne Portelli, was engaged to do administrative work. [2] PARTEC was established as a proprietary limited company but operates on a not-for-profit basis. The majority of its funding comes from the Queensland Government in the form of apprenticeships and upskilling subsidies. [3] Roger Cater is the Manager of PARTEC. He employed Mr Biebrick in July 2000 after the latter ceased his fibreglass business in Townsville in 1999. -- 2 of 17 -- 3 [4] Mr Biebrick claims he sustained a psychological injury as a result of a number of issues. His Statement of Stressors nominates five matters that were the subject of this Appeal. Nature of the Hearing [5] The hearing of an appeal is a hearing de novo.1 This means that the Commission starts afresh and is required to make its decision on the evidence that was presented at trial. The decision the Commission makes will, unless the matter is remitted to the Regulator, ultimately determine whether a worker appellant has an entitlement to compensation or not. The Appellant bears the onus of proof. The standard of proof is the balance of probabilities. 2 [6] The matters for the Appellant to establish are: (a) that he was a worker; (b) that he suffered a psychological injury; (c) that the injury arose out of or in the course of his employment; (d) that his employment was a significant contributing factor to the injury; and (e) to negative any issue under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 raised by his own evidence or by evidence led by Q-COMP.3 [7] Before dealing with the evidence given in this appeal, the role of the Commission in deciding a worker's compensation appeal needs to be explained. More particularly, I need to set out what the role of the Commission is not, given some of the submissions made by Mr Biebrick. He has submitted that a range of misconduct has occurred and that various authorities should investigate his claims. Those claims are not for the Commission to determine. The hearing of an appeal also does not trigger a commission of inquiry into any and every issue sought to be ventillated. Accordingly, the Commission does not propose to deal with Mr Biebrick's submissions where allegations of misconduct, unlawful conduct or similar are made. Equally, it is not my role to determine whether PARTEC breached the Fair Work Act 2009, occupational health and safety laws or other legislation referenced in Mr Biebrick's submissions. [8] In a similar vein, Mr Biebrick's submissions pose a series of questions, many of which are not germane to the issues I have to determine. Again, I do not propose to respond to these matters. [9] The role of the Commission is to determine whether a worker appellant has sustained a work related injury. The issues for determination in this regard are those set out in points (b) to (e) of paragraph [6] above. (The Regulator conceded Mr Biebrick was a worker.) Resolution of those issues is reached following consideration of the evidence given by both the lay and health practitioner witnesses. Whether Mr Biebrick suffered 1 State of Qld (Queensland Health) AND Q-Comp AND Beverley Coyne [2003] 172 QGIG 1447. 2 John Labaj AND WorkCover Queensland (2003) 174 QGIG 370. 3 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http:www.qirc.qld.gov.au, [2]. -- 3 of 17 -- 4 a work related injury is a mixed question of law and fact and ordinarily the Commission is guided by the medical evidence.4 [10] Mr Biebrick was a self-represented litigant who had not had the benefit of a conference under s 552A of the Act but had received guidance from the Vice President at Mention Hearings. Mr Biebrick did his best to present a logical, coherent case and I acknowledge the preparation he had done in readiness for the trial. However, not unsurprisingly, some procedural matters were foreign to him. The Commission endeavoured to extend appropriate assistance to Mr Biebrick in order to ensure he had a fair opportunity to present relevant evidence. I also acknowledge the assistance provided by Counsel for the Regulator and his instructor in this regard. Given a comment made in Mr Biebrick's submissions, it is important to note that the Regulator does not act for the employer,5 in this case, PARTEC. Rather, its role is to defend the review decision.6 [11] Finally, as explained to Mr Biebrick during the proceedings, the Commission must limit its consideration to those matters he identified in his Statement of Stressors and which occurred before he decompensated. The Stressors [12] Mr Biebrick filed a Statement of Stressors, pursuant to the Directions Order, claiming the following work events cause his psychological injury: "1. Manager (Roger Cater) failed to upskill/restricted qualifications as of 2008. Failed health and safety compliance in Townsville. 2. Terry Sturman held back qualifications. 3. PARTEC Qld Pty Ltd Management Board failed as their 'duty of care' duty of disclosure under award: Alan Birchley & Frank Chambers. 4. Tracey Galuzen abusive email: Manager sided with her, failed to investigate, abuse continued until resigning. 5. Coin Gossip failed to make Townsville compliant in relation to Brisbane (Occupational Health and Safety Act)." [13] I have divided the first stressor into two parts as it deals with quite separate issues. The first part concerning the failure to upskill Mr Biebrick and Stressor 2 are dealt with together as the issues are related. The second part of Stressor 1, which is about health and safety matters, is considered as part of Stressor 5 as it concerns such matters, albeit specifically in relation to Mr Gossip. 1.(a) Manager (Roger Cater) failed to upskill/restricted qualifications as of 2008 2. Terry Sturman held back qualifications [14] Mr Biebrick held a Certificate 11 and a Certificate IV in Assessment and Workplace Training at or around the time he commenced employment with PARTEC. 4 Q-COMP v Parsons (2007) 185 QGIG 1, 3. 5 Australia Meat Holdings Pty Ltd AND Angela Merilyn Kennedy AND Q-COMP (2006) 181 QGIG 474, 476. 6 Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator) (No. 2) [2014] QIRC 072. -- 4 of 17 -- 5 [15] The trade of Composites Technician was created in February 2000. It did not have a qualification standard attached to it at that stage e.g. Certificate 111, Diploma etc. A Certificate 111 is recognised as a trades qualification. The Training Recognition Council issued Mr Biebrick with a certificate on 12 April 2001 recognising that he had gained sufficient experience in the occupation of Composites Technician to be regarded as qualified in that occupation. The Composites Technician qualification was formally recognised as being at Certificate 111 standard in May 2003. [16] Despite that, Mr Biebrick considered that the use of the term "Technician" meant he was a Certificate IV Composites Technician and relied on part of a sentence in a letter from the Department of Employment and Training for that view. However, perusal of that correspondence from 2004 shows that the Department was recognising the confusion over the use of the term "Technician" and noted that that title usually refers to a Certificate IV qualification. The Department went on to advise that the issue had been considered by the Training and Employment Recognition Council which decided that Certificate 111 was to be the approved qualification of Composites Technician.7 The net effect of the Department's correspondence is that Mr Biebrick was never recognised as being Certificate IV qualified. [17] Further, that Mr Biebrick was recognised as having sufficient experience in the occupation of Composites Technician to be regarded as qualified does not mean that he was the holder of a Certificate III qualification. However, and as confirmed to him by letter dated 12 December 2008 from the Department of Education, Training and the Arts, the certificate issued to him on 12 April 2001 by the Training Recognition Council gave him the status of a fully qualified tradesperson. Mr Cater said that with his qualifications, Mr Biebrick was able to train and assess students up to and including the Certificate III qualification. [18] According to Mr Cater, PARTEC made the decision to move towards post-trade qualifications for the industry and to move their staff to that level. Mr Biebrick wanted to obtain a Certificate IV Composites Technician qualification. Mr Cater said this qualification was never a requirement of Mr Biebrick's employment. It was his call whether and when the upskilling would be done. The first Certificate IV was conferred on a PARTEC staff member in 2013. [19] Mr Biebrick contends that the comment by Mr Cater in evidence that it was "his call whether and when" he was to be upskilled is an admission that Mr Cater failed to upskill him and held back his qualifications. However, that submission misunderstands the evidence. While there was no requirement for Mr Biebrick to upskill, Mr Cater nonetheless expected him to do so. Mr Cater said he would determine when that was necessary given the needs of the organisation. [20] Although Mr Biebrick was recognised as a trades qualified, when he sought to upskill to Certificate IV, Mr Cater decided that he should first have the skills he held formally recognised through the Recognition of Prior Learning (RPL) process. Mr Cater recognised that Mr Biebrick was in an unusual position holding a Certificate 11 qualification but recognised as being equivalent to Certificate 111. Mr Cater wanted to see the actual skills "ticked off" prior to proceeding to the next level. Mr Cater said that a person who held a Certificate 111 qualification would have completed 21 units 7 Exhibit 2, Item 8B. -- 5 of 17 -- 6 of competency. Mr Cater was proposing that these be assessed through RPL so that he could issue the formal Certificate 111 qualification. After that, Mr Biebrick could complete the units required for Certificate IV. [21] However, this proposal only served to confuse Mr Biebrick who could not understand why he needed to be RPLd when he was recognised as trades qualified. This confusion is understandable. Why should Mr Biebrick be required to be effectively re-assessed for a qualification for which the Training Recognition Council had already recognised his having relevant experience? The answer is in three parts. Firstly, Mr Cater as the Manager of a registered training organisation wanted his staff to hold the actual relevant trades certificate when upskilling was being sought. Secondly, some of the units had changed since Mr Biebrick received trade recognition and Mr Cater was uncertain of which skills had been assessed as part of the trades recognition process. Finally, Mr Cater considered the RPL process would provide Mr Biebrick with good experience in his role as a Trainer. Regrettably, and even though some of these reasons were explained to Mr Biebrick, he believed that Mr Cater was holding him back from being upskilled. [22] Mr Biebrick emailed Terry Sturman, PARTEC's Administration Officer, on 26 November 2008 requesting the self-assessment forms. At that time Mr Biebrick acknowledged that Mr Cater wanted him to practice with his own RPL. Ms Sturman replied setting out the steps that Mr Biebrick had to take and advising what work she was doing to assist. She also sent him the application form. [23] Ms Sturman provided assessment material to Mr Biebrick and also proposed that he use some of his own forms and assessments for the RPL process. Mr Biebrick contends this would have been academic fraud. Again, this misunderstands what was being proposed. Mr Cater explained that the completion of the exams was one part of the process showing that Mr Biebrick had particular competencies. The primary processes are self-assessment and third party evidence. Once all of this was collected Mr Cater could then certify that Mr Biebrick possessed the relevant competencies. [24] Further, Ms Sturman, said that in December 2008, the curriculum that was being used in VET for the plastics industry had been revised and republished. Ms Sturman said it would have been reasonable to assume that in light of these changes, Mr Biebrick would need to revise his materials and theory assessments and check them against the new rules. By so doing, Mr Biebrick would be able to "test-run" his new assessment items which could then be included as a proof of competency in the RPL process. She explained that Mr Biebrick would be able to submit the assessment as proof he understood how that particular training package competency worked. [25] The test-run was proposed in relation to self-assessment. Self-assessment sheets are drawn from the unit of competency and the person completing the sheet only needs to mark which tasks they can and cannot do and answer with "a few sentences" at the end. Given the employer was having difficulty in getting Mr Biebrick to complete the self-assessment sheets for the PARTEC suite of documentation for RPL, Ms Sturman believed a more familiar format might assist in having Mr Biebrick complete and return the documentation. [26] Mr Cater left the detail of the units Mr Biebrick needed to complete to obtain the Certificate IV to Ms Sturman. -- 6 of 17 -- 7 [27] Ms Sturman sent Mr Biebrick the relevant paperwork and made multiple unsuccessful attempts to have Mr Biebrick complete and return the documents. In particular, she referred to her efforts in 2008 and 2010. However, Mr Biebrick did not comply. [28] Ms Sturman said that in RPL, the onus is on the applicant in completing much of the documentation. Offers were also made for another employee of PARTEC to assist Mr Biebrick with the RPL process. [29] Mr Biebrick became frustrated with Ms Sturman's approach and went to an external provider to have his qualifications RPLd to Certificate IV. An enquiry was made of the relevant Department for information to assist in the RPL process. Mr Biebrick interpreted the response as saying his file was "locked". However, what the correspondence actually reveals is that the Department was unable to provide Mr Biebrick with the sub-committee's report or the names of the sub-committee members who undertook the earlier trades recognition assessment as this information was confidential. Mr Cater acknowledged that the unavailability of this information made it difficult for Mr Biebrick, PARTEC and the external provider to ascertain what competencies Mr Biebrick was deemed to hold. [30] Ms Sturman became aware that Mr Biebrick intended to approach an external RTO to obtain his RPL. She considered this was appropriate given the difficulties she had experienced with Mr Biebrick. [31] In 2011 Ms Sturman performed a mapping exercise to work out which units Mr Biebrick might be required to undertake to upskill to Certificate IV. As a result she proposed to Mr Cater that Mr Biebrick could undertake 12 units to obtain the Certificate IV qualification. However, Mr Cater agreed to eight units with Mr Biebrick still being required to undergo RPL. [32] Ms Sturman considered that Mr Biebrick prevaricated over getting RPLd. She was of the view that Mr Biebrick's complaints about not understanding the documentation was really a result of his not reading it. She denied holding back Mr Biebrick's qualifications because he did not submit any documentation that was valid or relevant. [33] The Commission accepts that Mr Biebrick was confused about his status as a result of being recognised as having experience in the occupation to be regarded as qualified at Certificate 111. However, as PARTEC's business is providing training and upskilling, I consider that Mr Cater and Ms Sturman were best placed to determine the pathway for Mr Biebrick to obtain the Certificate IV. By his own admission, Mr Biebrick did not complete and return all of the required documentation. The conclusion is that Mr Cater and Ms Sturman did not prevent, hinder or delay Mr Biebrick from upskilling. The primary responsibility rested with him. 3. PARTEC Qld Pty Ltd Management Board failed in their duty of disclosure under award: Alan Birchley & Frank Chambers. [34] Briefly the facts are that a student of Mr Biebrick's, Mario Menso, was prosecuted by the then Queensland Building Services Authority (QBSA) for performing unlicensed building work. Mr Menso had repaired a fibreglass swimming pool but such work is -- 7 of 17 -- 8 classed as building work under the relevant legislation and requires the repairer to hold a licence where the value of the work exceeds $3300. [35] Because he had trained Mr Menso in the skills to do the work of repairing fibreglass swimming pools, Mr Biebrick considered the work legitimately fell within the composites industry. He became very involved in seeking to rectify the perceived injustice in the case. He was summonsed to appear as a witness for Mr Menso. His rationale for involvement stems in part from his interpretation of the industrial instrument that applied to PARTEC and associated documents. [36] Mr Biebrick refers to Clause 1.2 of the Award (in fact the Partec (Qld) Pty Ltd - Certified Agreement of 1994 (CA)). This is the Scope of Agreement clause in the CA and provides an exemption in the following terms: "Exemption - The provisions of this Agreement may be varied by written agreement between the Manager and the employee(s), and such agreement shall form part of the terms and conditions of the Certified Agreement." [37] Mr Biebrick's letter of appointment refers to the CA and attaches a letter from Mr Cater that is additional to the letter of appointment. Paragraph 8 of the letter states: "I expect you will regard your students as your 'clients'….Your obligation to your clients continues until they get their certificates." Paragraph 10 states in part: "… your main obligation to your specialty field of technology." [38] Mr Biebrick makes a number of allegations against a range of people and organisations. It is not clear what the allegation concerning Mr Birchley is about. Various matters were raised by Mr Biebrick in his evidence, however, the only one relevant to Mr Birchley is "the whole PARTEC organisation has failed … to resolve this issue." The issue referred to is the prosecution of Mr Menso whose qualifications were not recognised as appropriate to undertake the repair of fibreglass swimming pools. [39] The allegation against Mr Chambers is that whilst he was a member of the governing body of PARTEC, he did not disclose that he was also a member of the Queensland Construction Industry Training Advisory Council (QCITAC). When Mr Biebrick discovered this information it came as a complete shock and he decompensated. The reason for such profound shock was the view that Mr Chambers was involved in the building industry which was taking action against a student of PARTEC, an organisation of which he was a board member. Mr Biebrick said he "sniffed a conspiracy" and was "able to join the dots" as to why his employer had not been strident in speaking out against the QBSA prosecution. [40] With due respect to Mr Biebrick, he misunderstood a number of matters. Firstly, the QCITAC involved both industry and union representation and is completely separate from the QBSA. Its function was to advise on training needs, courses and qualifications for the industry. -- 8 of 17 -- 9 [41] Secondly, Mr Biebrick contends that Mr Chambers was supposed to declare a conflict of interest to the "Parliament Committee". Mr Cater said that he received "masses of emails" from Mr Biebrick and Mr Menso about the circumstances leading to the prosecution. He also asked Mr Chambers about whether he had any connection with the QBSA. Mr Chambers denied that he had and Mr Cater communicated this information to Mr Biebrick. [42] Thirdly, Mr Biebrick has completely taken out of all proportion the instructions given by Mr Cater in his letter of 1 November 2001. The obligation is to train (or RPL) the student to ensure they receive the qualification for which they were enrolled. This means delivering training, assisting the student to attain the qualification and assessing the student. The obligation to the field of speciality is a professional obligation. It cannot be inferred from these two obligations that the employee has to engage in a political campaign, which Mr Biebrick did, and to support a student at all costs when they had broken the law. What Mr Biebrick did in his own time on these issues was a matter for him, provided it did not conflict with his obligations to his employer. [43] He also contends that the "board of management of PARTEC failed in their Duty of Care and their Duty of Disclosure even knowing I was assisting a 'client' of PARTEC and research would be carried out." The essence of the complaint is that PARTEC and industry bodies could have influenced changes to the legislation and intervened in Mr Menso's case as the work Mr Menso had done was plastics work but governed by building legislation. [44] Mr Cater acknowledged that action needed to be taken to deal with composite repair work to swimming pools and had recommended the establishment of an appropriate training course. However, he strongly rejected Mr Biebrick's claims as it related to Mr Menso's case. In his view, Mr Menso had breached the legislation and was prosecuted. Mr Biebrick had taken the high moral ground and pursued the matter to his own detriment. [45] The Regulator submits this stressor is the primary stressor. However, the stressor is not the prosecution per se but the conspiracy of silence. Further, this stressor is an external event, unrelated to Mr Biebrick's employment. [46] The Commission accepts these submissions for the following reasons. Mr Biebrick's loyalty to Mr Menso is admirable, however, the prosecution of Mr Menso is quite unrelated to what Mr Biebrick was required to do in his employment. That Mr Menso was a student of Mr Biebrick's at the time does not make his issues an incident or duty of Mr Biebrick's employment. It follows that this stressor is outside the scope of the workers' compensation legislation and will not be considered further as part of this decision. 4. Tracey Galuzen abusive email: Manager (Roger Cater) sided with her, failed to investigate, abuse continued until (Appellant's) resigning. [47] The brief facts of the matter are that there was a telephone conversation between Ms Galuzen and Mr Biebrick. Ms Galuzen is the accounts clerk for PARTEC based in the Brisbane office. One of her responsibilities is to chase payment of invoices -- 9 of 17 -- 10 issued by the Brisbane office. The Townsville Office is responsible for contacting clients to arrange payment for invoices it issues. [48] Ms Galuzen however chased up one invoice issued by the Townsville office. She telephoned the Townsville Office and spoke to Mr Biebrick. She wrote a contemporaneous note of the words used by Mr Biebrick on the invoice. Ms Galuzen presented this to Mr Cater complaining about the language used with a request that he advise Mr Biebrick to speak to her respectfully. [49] Mr Cater said Ms Galuzen was "quite upset" about the remarks Mr Biebrick made to her. He emailed Mr Biebrick attaching a copy of the invoice with the note. Mr Cater told Mr Biebrick he was not to speak in that manner. [50] Mr Biebrick agreed he was quite forceful but denied using intemperate language to Ms Galuzen. Ms Portelli, who overheard the conversation, supported this view. However, what appeared to be more distressing to Mr Biebrick was that Mr Cater immediately accepted Ms Galuzen's version and did not ask Mr Biebrick for his version before sending the email. [51] As the Regulator noted in its submission, this event was not mentioned in the evidence of any of the health practitioners whom Mr Biebrick consulted. As such it cannot be considered to be a genuine stressor that contributed to the development of the psychiatric injury. However, I make the following comments about the events. [52] In my view Ms Galuzen was unlikely to write a contemporaneous note of what was said to her and present as "quite upset" if the event had not occurred. However, I accept it was hasty of Mr Cater to immediately accept Ms Galuzen's version without first contacting Mr Biebrick, a long serving employee, for his version particularly as it transpired there was a history attached to the invoice. Mr Cater's haste to act in this manner can be characterised as a blemish rather than unreasonable management action taken in a reasonable way. Management action does not have to be perfect.8 5. Colin Gossip failed to make Townsville compliant in relation to Brisbane (Occupational Health and Safety Act). 1.(b) Mr Cater failed in health and safety compliance in Townsville. [53] These stressors cover the period from 2009 until Mr Biebrick's resignation in 2013. Those that post-date Mr Biebrick's decompensation are excluded from consideration. [54] Mr Biebrick's complaint against Mr Gossip is that he was tardy in making some emergency exit signs. Mr Biebrick said Mr Gossip misled the Townsville Office into believing he was the health and safety officer and had been directed by Mr Cater to manufacture the signs. As a result of not providing the signs in a timely way the Townsville Office was non-compliant with occupational health and safety laws. [55] Ms Portelli said Mr Gossip told her he was the health and safety officer and was required to ensure the Townsville office was compliant with the legislation. Ms Portelli said she prepared floor plans to assist Mr Gossip and sent a number of 8 Bowers v WorkCover Queensland (2002) 170 QGIG 1. -- 10 of 17 -- 11 emails to him asking for the signs to be made. No emails on this subject were able to be located. [56] Mr Cater acknowledged receiving the floor plans for the Townsville Office. He said they were produced at his request because, through some professional development Mr Gossip was undertaking, software was accessed which allowed the signs to be produced. Mr Cater said the signs were produced to make it easier for Mr Biebrick, who, as the sole employee of PARTEC located in the Townsville Office, was responsible for health and safety. [57] Mr Gossip said he was not the health and safety officer for PARTEC and this was confirmed by Mr Cater. Because of the number of staff employed, PARTEC is not required by law to have a health and safety officer. [58] Mr Gossip said he undertook on his own initiative to make the emergency exit signs as part of his Certificate IV training in health and safety and because he had the CAD skills to do so. [59] In relation to this issue, it appears that the signs took some time to be made. However, it was not a requirement of Mr Gossip's job to make them. In the event the Townsville Office was not health and safety compliant then Mr Biebrick had authority to take steps to ensure compliance. [60] It is difficult to be certain about the precise allegations made against Mr Cater regarding health and safety issues before Mr Biebrick's decompensation. One allegation is that Mr Cater failed to supply adequate lifting equipment. Further, any part-time assistance required to help lift had to be approved by Mr Cater. [61] There is no doubt that periodically lifting has to be performed in Townsville. No lifting equipment was provided by PARTEC. When lifting had to be undertaken, Mr Biebrick relied on assistance from students, a volunteer or borrowed equipment from surrounding businesses. Mr Biebrick believed that a pallet jack was required and made a submission asking Mr Cater for PARTEC to purchase one for the Townsville Office. [62] Mr Cater said heavy lifting was only required about once every three months and for this Mr Biebrick could hire someone to assist. Nothing was required to be lifted which would breach manual handling standards. [63] Mr Biebrick contended that he raised health and safety issues regularly with Mr Cater, however, this was denied. [64] The Commission accepts there was no manual handling aids to assist in lifting. The Commission also accepts that Mr Cater declined to purchase a pallet jack. However, notwithstanding these findings, I am not satisfied that the evidence supports a conclusion that Mr Cater failed in health and safety compliance in Townsville. -- 11 of 17 -- 12 Did Mr Biebrick suffer a work related injury? [65] The Regulator has put in issue whether the injury sustained by Mr Biebrick arose out of or in the course of employment and whether employment was a significant contributing factor to the injury. [66] Professional evidence of Mr Biebrick's health was given by his General Practitioner, a psychologist and a psychiatrist. [67] Mr Biebrick decompensated at home on 28 March 2012. He was admitted to hospital. [68] Dr Anna Lindsay: Dr Lindsay is a General Practitioner who practises from the United Medical Centre, Mount Louisa. Dr Lindsay first treated Mr Biebrick on 29 November 2012, some months after his decompensation and subsequent release from hospital. Dr Lindsay was aware from her first consultation that Mr Biebrick had experienced stress which he described as stress at work. Dr Lindsay had taken over Mr Biebrick's care from another General Practitioner. Although she had a heath summary, it was not sufficiently detailed for her to make any comment about his long term stress. [69] Dr Peter Golus: Dr Golus is a registered psychologist who currently practises in Tasmania, however, Mr Biebrick was a patient of his from 5 April 2012 to 11 July 2013. He holds a double major honours degree in psychology and has a PhD in psychology specialising in psychoneuroendocrinology. It does not appear that he formally diagnosed Mr Biebrick; however, he found Mr Biebrick to be severely depressed and had significant anxiety. [70] Dr Golus said that Mr Biebrick's "main problem is work … everything was work-focussed, with anxiety, depression." After considering his notes, Dr Golus said that Mr Biebrick's anxiety and depression over that period was "basically due to work, stress, conflict with PARTEC." Most of the problems related to the Manager, Roger Cater. Particular issues Mr Biebrick identified were not being treated correctly in his certification and closing the Townsville Branch. One of the reasons Mr Biebrick thought he had a nervous breakdown was finding that one of the directors of PARTEC was also a member of a construction industry advisory committee. He said: "Anxiety, worry, depression. It's all focussed around PARTEC and - and the many issues that he had with them." [71] Under cross-examination Dr Golus said the discovery of the director on the construction committee "highly" contributed to and was a significant connection with Mr Biebrick's collapse. Dr Golus agreed that this upset Mr Biebrick because of the context of the prosecution of Mr Biebrick's student by the QBSA. [72] Mr Biebrick identified to Dr Golus the issues of concern about Mr Cater to be occupational health and safety and not upskilling him. However, in relation to the health and safety matters, Dr Golus was unable to provide any dates and times. [73] The Commission asked Dr Golus whether Mr Biebrick had raised any issue concerning Tracey Goluzen. Dr Golus responded that he did not have any note of that matter. -- 12 of 17 -- 13 [74] Dr Golus said there were so many issues it was difficult to assist Mr Biebrick through that period. However, he did not have a personality disorder. Were he suffering from a Major Depressive Disorder then Mr Biebrick would have misinterpreted events. [75] Dr Riccardo Caniato: Dr Caniato is a Consultant Psychiatrist to whom Mr Biebrick was referred by WorkCover Queensland in relation to his claim for a psychological injury. At that time Dr Caniato was uncertain about Mr Biebrick's diagnosis. Dr Caniato provided a report to WorkCover dated 4 November 2013. From the medical information provided, Dr Caniato was aware that Mr Biebrick had experienced previous diagnoses of depression dating back to 2008 and Mr Biebrick told him he had been on anti-depressants for years. Dr Caniato considered the symptoms of Mr Biebrick's pre-existing Major Depressive Disorder worsened at or around the period of 2012. He ultimately provided a diagnosis of Major Depressive Disorder - recurrent - currently in remission. [76] In the section concerning the history as provided by Mr Biebrick, Dr Caniato states that he provided a complex series of work related issues. Later in his report Dr Caniato said that Mr Biebrick was "not able to identify what specific issue is considered to be the work related injury" and was "not able to summarise his concerns in any particular organised way, other than to say there are multiple concerns and issues that he raises." He states that Mr Biebrick feels "genuinely and strongly aggrieved" and refers to various factors, including the manager of PARTEC as being one of the major contributors to his issues. However, Dr Caniato also nominates other stressors identified by Mr Biebrick such as "legal and government institutions" and "political parties and institutions". [77] Dr Caniato agreed that the discovery of the information concerning Mr Chambers was acute and appeared to have a reasonably direct relationship to Mr Biebrick's decompensation. Because of that he assumed that stressors had been going on for a longer period. [78] The following two paragraphs from his report are instructive: "In the here and now, I am not able to identify a particular injury or incident that could be reasonably considered to cause major mental illness in an average person. There is no incident, the nature of which that would cause post-traumatic stress disorder, adjustment disorder or could be directly responsible for other psychiatric disorders. I conclude therefore that Mr Biebrick has had a relapse of his Major Depressive Disorder at or about some period in 2012. I conclude that this Major Depressive Disorder has now been treated and is in remission. I cannot conclude that there are any particular events identified that have directly caused his Major Depressive Disorder. It is plausible that due to Mr Biebrick's predisposition to depression that he may have interpreted certain incidents and events in a more negative light. There may be also other biological causes and psychosocial causes for his depressive illness. Personality factors may also be relevant and personality assessment should be considered." -- 13 of 17 -- 14 [79] In answer to the question as to the relation of the current work related diagnosis to the stated mechanism of injury he concludes in his report: "I am not able to find a direct mechanism of injury for the work related diagnosis. I am not able to endorse a specific work related injury or illness." [80] Dr Caniato noted that Major Depressive Disorder is multi-factorial and a number of factors are considered such as past history, predisposition and biological factors. The Commission attempted to tease out from Dr Caniato what particular issues may have contributed to the recurrence of the Major Depressive Disorder. Dr Caniato responded that it is incumbent on the patient to identify what caused the work-related injury. While Mr Biebrick can identify some matters he was unable to "outline specifically and in an accurate way what he believes the causes are". Dr Caniato also noted that it was not for him to determine the real cause of a work related illness, but a matter for a court. However, he went on to say: "what we are starting to describe is someone who has a long-term dissatisfaction with a broader range of occurrences in their job." [81] Conclusion on health practitioner evidence: The Regulator submits that insufficient medical evidence is available for the Commission to conclude that Mr Biebrick's injury arose out of or in the course of employment. The injury may have arisen during the period of Mr Biebrick's employment but this is not the test. Hall P explained the proper approach in WorkCover Queensland v BHP (Qld) Workers' Compensation Unit: 9 "In Charles R. Davidson v McRobb [1918] AC 304 at 321 Lord Dunedin put the matter in this way: 'In my view, "in the course of employment" is a different thing from "during the period of employment". It connotes, to my mind, the idea that the workman or servant is doing something, which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work or the natural incidents connected with the class of work. . .'. " [82] Employment must be more than the setting in which the injury occurred but must be the real, effective cause.10 Further, employment must be a significant contributing factor to the injury. "Employment" refers to what the worker in fact does in their employment11 and, for it to be a significant contributing factor, the connection between injury and employment is additional to each of the requirements that the injury arose out of or in the course of employment.12 [83] The Regulator further submits that the evidence of Dr Golus was lacking in essentials. Although the Commission could accept Mr Biebrick was dissatisfied during the period of his employment, the Commission could not be satisfied that the injury arose out of or in the course of employment. In this regard reliance was also placed on the evidence of Dr Caniato who was unable to discern any particular incident or incidents that were work-related. 9 WorkCover Queensland v BHP (Qld) Workers' Compensation Unit [2002] 170 QGIG 142. 10 Peter James Croning AND Workers' Compensation Board of Queensland [1997] 156 QGIG 100, 101. 11 Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626, 641. 12 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 49, [36]. -- 14 of 17 -- 15 [84] The evidence of each health practitioner has its own difficulty. I have disregarded the evidence of Dr Lindsay given her lack of knowledge about the stressors impacting on Mr Biebrick at the relevant time. [85] Dr Golus had the advantage of having 31 consultations with Mr Biebrick from shortly after his decompensation to 11 July 2013. He was able to discern from Mr Biebrick's presentation that he was concerned about many matters which varied in intensity from one consultation to the next. However, he also identified the significance of matters concerning PARTEC including upskilling, which was a long drawn out issue; finding out information about one of the Directors of PARTEC and occupational health and safety issues. With the latter issue however Dr Golus was unable to be specific about times and dates and his evidence discloses that Mr Biebrick's concerns about health and safety both pre- and post-dated his injury. [86] Dr Caniato only had one standard consultation of one hour with Mr Biebrick. He found Mr Biebrick's thought form to be over inclusive. In effect, Mr Biebrick gave him too much information and in my view this impacted on Dr Caniato's ability to determine the cause(s) of the injury. [87] Consideration of his evidence suggests Dr Caniato was looking for a single work related incident as being the cause of the relapse of the Major Depressive Disorder rather than considering a series of events occurring over time had contributed (see for example paragraph 78 where Dr Caniato was unable to identify "a particular injury or incident.") When asked by the Commission whether in Mr Biebrick's case there had been an accumulation of issues over a number of years with one specific incident being the tipping point for the decompensation, Dr Caniato replied: "that's a very good point. Sometimes, you know, the question is have the whole group of accumulated problems occurred in work that ultimately caused someone to be depressed? And sometimes, yes, it's very difficult to answer that definitively." The Commission acknowledges though that Dr Caniato went on to give his opinion that Mr Biebrick was dissatisfied for a long period over a range of things in his employment. [88] Given the competing evidence of Dr Golus, a psychologist, and Dr Caniato, a psychiatrist, about the contribution of work to Mr Biebrick's injury, the Commission must decide which to prefer. Whether the opinion of an appropriately qualified psychologist can outweigh that of a psychiatrist depends on whether Mr Biebrick's condition is related to pharmacological or other medical issues involved.13 It is clear that Dr Golus is appropriately qualified. [89] Dr Caniato referred in his evidence to medical records that showed Mr Biebrick had been diagnosed with depression on 23 February 2008 and that he had been managed pharmacologically for his depression "for years". Both Dr Golus and Dr Caniato gave evidence that one effect of depression is the misinterpretation of events. Earlier in this decision I commented on Mr Biebrick's misinterpretation of various events. 13 Q-COMP AND Jennifer Jones (C/2010/51) - Decision <hppt://www.qirc.qld.gov.au>, [7]; R v Whitbread (1995) 78 A Crim R 453. -- 15 of 17 -- 16 [90] Mr Biebrick's Statement of Stressors shows that the issues concerning upskilling commenced on 28 November 2008, some nine months after his diagnosis of depression. Although Mr Biebrick states that Stressor 3 commenced in 2007, that cannot be sustained on the evidence. To the extent the Statement of Stressors can be relied on for accuracy of when the upskilling stressor commenced, it shows that it post-dated the first reported diagnosis of depression. The Commission does not have any evidence of when this depressive episode ceased. It may be that Mr Biebrick was still suffering depression at the time the upskilling issue arose in November 2008. The onus rests with the appellant to place relevant evidence before the Commission. In the circumstances the Commission is unable to be satisfied that the upskilling issue can properly be considered as a stressor contributing to the decompensation in March 2012. [91] Dr Caniato was of the opinion that the episode of Major Depression that occurred in 2012 was a recurrence of the pre-existing condition or, in other words, a relapse. He explained that the cause of Major Depressive Disorder is multi-factorial rather than a single cause. A range of factors are considered including predisposition and biological factors. On that basis it is clear that workplace issues alone were not the cause of the onset of the Major Depressive Disorder in 2012. Further, Dr Caniato did not attach significance to the workplace issues, rather he considered Mr Biebrick to be a long term dissatisfied employee. [92] Mr Biebrick was being treated by a medical practitioner with drugs for his condition. Because of this and the medical evidence about the causation of the Major Depresssive Disorder, and in light of legal authority, I am of the view that greater weight should attach to the opinion of Dr Caniato. Further, it appears the Mr Biebrick may have been suffering depression when the upskilling issue arose. I have reached the decision to rely on the opinion of Dr Caniato despite Dr Golus gaining a perspective over a number of consultations of the issues troubling Mr Biebrick which commenced shortly after he had been released from hospital. [93] It follows that accepting Dr Caniato's evidence means that the Commission cannot be satisfied that the injury arose out of or in the course of employment. Further, I am not satisfied employment was a significant contributing factor to the injury. I accept however that Dr Caniato diagnosed Mr Biebrick with a personal injury from which Mr Biebrick would have been suffering at the time of his decompensation as Major Depressive Disorder - recurrent. [94] In the event I am wrong about these matters, including the upskilling stressor, and the injury falls within the meaning of s 32(1) of the Act, it is not compensable because of the effect of the reasonable management action exclusion in s 32(5). After considering the evidence I concluded that Mr Cater and Ms Sturman did not prevent, hinder or delay Mr Biebrick from upskilling. Their actions taken in relation to Mr Biebrick's upskilling were reasonable and taken reasonably. Even were Ms Sturman's involvement to be found not to constitute management action, then there is still no basis upon which I could find that she held back Mr Biebrick's qualifications. The other stressors were found not to have been established on the evidence. -- 16 of 17 -- 17 Orders [95] The Commission makes the following orders: 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. Mr Biebrick is to pay the Regulator's costs of and incidental to the appeal. [96] Order accordingly. -- 17 of 17 --