Elmi v Simon Blackwood (Workers Compensation Regulator) [2014] QIRC 188

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Elmi v Simon Blackwood (Workers Compensation Regulator) [2014] QIRC 188 PARTIES: OTHER: Elmi, Mahad (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) Cannon Hill Services Pty Ltd t/a Australian Country Choice (employer) by leave to appear and be heard CASE NO: WC/2013/352 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 20 November 2014 HEARING DATES: 6 May 2014 7 May 2014 8 May 2014 9 May 2014 7 July 2014 (Written Submissions - Employer) 10 July 2014 (Written Submissions - Respondent) 24 July 2014 (Written Submissions - Appellant) 1 August 2014 (Written Submissions - Respondent) 8 August 2014 (Written Submission in Reply - Employer) MEMBER: Deputy President Kaufman ORDERS : 1. The Appeal is allowed. 2. The decision of the Workers' Compensation Regulator dated 2 October 2013 is set aside. 3. Mr Elmi's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is accepted. 4. The Respondent is to pay the Applicant's costs of and incidental to this appeal to be agreed or failing agreement to be the subject of a further application to the Commission. -- 1 of 8 -- 2 CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether the injury arose out of or in the course of employment – whether employment was a significant contributing factor – psychiatric injury – medical evidence – bullying and harassment CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100 APPEARANCES: C. Jensen, solicitor, of Dr Craig Jenson Lawyers, for the Appellant S. P Gray, of counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent T. A Nelson, of counsel, instructed by B.T Lawyers, for the Employer, Cannon Hill Services Pty Ltd (T/A Australian Country Choice) Reasons for Decision [1] Mahad Elmi claims that he suffered a compensable injury and made a claim for compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). His claim having been rejected he has appealed to the commission. [2] Cannon Hill Services Pty Ltd T/A Australian Country Choice (the employer) has been granted leave to appear and be heard in this matter. For convenience, in these reasons I will refer to the regulator and the employer collectively as "the respondents". Issues for Determination [3] It is not in contention that Mr Elmi was a worker employed by the employer and that he suffered a personal injury whilst so employed. [4] The issues for determination, are whether Mr Elmi suffered an "injury" within the meaning of that word in s 32 of the Act. He will have done so if he suffered a personal injury arising out of, or in the course of, employment if the employment was a significant contributing factor to the injury, or if his personal injury was aggravated and the aggravation arose out of, or in the course of, employment and the employment was a significant contributing factor to the aggravation. Background [5] Mr Elmi commenced employment with the employer in January 2007, having previously worked, apparently without incident, in various meat processing facilities -- 2 of 8 -- 3 in both Western Australia and Queensland following his immigration to Australia from Somalia in 1997.1 [6] Mr Elmi was employed as a Halal slaughterman, where he slaughtered beasts according to Islamic law. [7] The layout of the plant where Mr Elmi worked as well as the system of work were succinctly described in the written submissions of the employer. This conveniently summarized the evidence, and together with photographs of the work area, has assisted me in forming a mental picture of the area in which Mr Elmi worked. Beyond observing that Mr Elmi worked in close proximity with the knocker, the shackler and the plugger it is not necessary to further describe the system of work. Mr Elmi’s claim [8] Essentially Mr Elmi’s case is that over the course of his employment, but, significantly for the period 1 January 2009 until 21 December 2012, he was subjected to bullying and harassment by some of his fellow employees to such an extent that it eventually led him to suffer a "psychiatric injury". According to Dr Ash Takyar, a consultant psychiatrist called by the appellant, this manifested itself as major depressive disorder and generalised anxiety disorder", or "an adjustment disorder with mixed anxiety and depressed mood" according to Dr Wasim Shaikh, a consultant psychiatrist called by the regulator. [9] In answer to the written question: "What are the various matters that the claimant reports to you as having caused his psychiatric condition?" Dr Shaikh replied that: "…Mr Elmi’s condition has equal contribution from perceived workplace stressors as well as the distress from termination of his employment, and an inability to source alternative employment."2 In answering a question about the relative importance of the factors identified as causing the psychiatric condition he stated: "…considering the chronology of reported symptoms, medical assistance and file records, it is my opinion that equal attribution can be given to workplace stressors as well as the non-work related condition (termination of employment and inability to find alternate employment)."3 [10] In his brief, Dr Takyar was asked whether Mr Elmi had suffered psychiatric or psychological injury due to workplace bullying, to which he replied: "… I can confirm that at the time prior to dismissal Mr Elmi suffered psychiatric injury in the form of major depressive disorder and generalised anxiety disorder, which appears to be solely due to workplace bullying and harassment that he described at assessment."4 1 T1-5, Lines 4-15. 2 Ex R7, p 9. 3 Ex R7, p 10. 4 Ex A7, p 8. -- 3 of 8 -- 4 [11] It should be noted that Mr Elmi’s employment was summarily terminated on 21 December 2012 for gross misconduct. He had apparently aggressively approached another employee whilst holding a knife. The parties have agreed that to the extent that the termination of Mr Elmi’s employment contributed to his condition, that is not a matter that forms part of his claim or this appeal. Consideration [12] It is not contested that Mr Elmi suffered a personal injury. What I need to determine is whether the personal injury arose out of, or in the course of, the employment, and if so, whether the employment was a significant contributing factor to the injury. [13] As is usual in matters of this nature the appellant was directed to itemize the events that he alleges led to him suffering his personal injury. He provided what is known as a statement of stressors, which he twice amended. Dr Takyar had been briefed with the amended statement of stressors for the purposes of providing his report. [14] It is almost invariably the case that in assessing what might have caused or contributed to a person suffering a psychiatric or psychological injury, medical professionals rely on what the person has told them about the events leading to the illness, at least insofar as the person believes them to be relevant. [15] It is also often the case that, in appeals such as this, other factual scenarios are put to medical practitioners that, if accepted, might cause them to alter their opinions as to the reasons for the person’s medical condition. Counsel for the appellant accepted as much when he conceded "that if all of the appellant’s evidence of his unpleasant workplace experiences were rejected, his case might fail … ". (Original emphasis) That would be because the appellant would not have been able to persuade the commission that his work was a significant contributing factor to his personal injury; perhaps not even that it arose out of, or in the course of, the employment. [16] There has been a significant body of evidence led as to the goings on at the workplace during the relevant period. The appellant’s evidence, given largely through an interpreter, sought to establish that the matters alleged in his amended statement of stressors had occurred. His cross-examination, and the evidence led by the respondents, went to undermine the evidence of the appellant. By way of example I will refer to some of the events. [17] Mr Elmi’s evidence was that other workers on the killing floor deliberately sprayed him with water and threw fat and blood clots at him. Much cross-examination went to seeking to undermine that contention by going into minute detail about the layout of the killing floor, where he was standing in relation to others and so on. Mr Elmi said that other workers referred to him in obscenely derogatory and, at times racist, terms and frequently verbally abused him. The witnesses called by the employer all denied having done so or having heard others do so, albeit that concessions were made about the robustness of the workplace and the colourful language that is frequently used. Mr Elmi complained that another worker had dropped a burning cigarette into his boot. That worker was not called, but I accept that the reason for that was probably because that worker was not identified until the third statement of stressors was filed close to the hearing date, and draw no inference adverse to the respondents by his failure to be called. Mr Elmi said that other workers threw fat -- 4 of 8 -- 5 and blood clots at him from behind on occasion, but that no one would admit to having done so. He also complained of having been jostled by other workers in the corridors. [18] Mr Elmi particularly singled out the men who worked in his area as those who bullied him. Ben Parfitt had worked in several positions, including as a sticker or plugger and as a shackler. He has also been a union delegate. Matt Riley rotated between the knocking, shackling and muzzling areas. Aramana Northcroft also rotated between knocking, muzzling and shackling. The allegations made against them were all denied by these witnesses, who were called by the respondents. [19] This case turns very much on the credibility of the witnesses all of whom I have had the benefit of seeing and hearing, an advantage which WorkCover Qld and Q-Comp, which both rejected Mr Elmi's application, did not have. Counsel for the regulator submitted that the most important issue is whether the commission can find that employment was a significant contributing factor in circumstances where the events have not occurred as described by Mr Elmi and/or that it is Mr Elmi’s perception of events that is the significant contributing factor to his injury. I agree. However if the events have occurred, or substantially occurred as described, the position may be different. [20] In the circumstances of this case where one psychiatrist attributes the injury entirely to the events in the workplace as described by the appellant, and the other, 50 per cent to those events, it is readily apparent that, were I to find that the alleged workplace bullying occurred, Mr Elmi’s personal injury will fall within the definition of injury in s 32 of the Act; it will have arisen out of, or in the course of, his employment and the employment will have been a significant contributing factor to the injury. So much seems to be accepted by the respondents. Factual findings [21] The respondents have rightly criticized the alteration by Mr Elmi of his statement of stressors on two occasions. They also point to the many inconsistencies in his evidence about the precise nature of the events that he contends amount to the bullying that brought about his decompensation. However, in a case such as this, where the events that are said to have occurred over a span of years, it is almost inevitable that a precise and accurate account of each of those events is unlikely to be achievable. [22] Nevertheless, I am satisfied that Mr Elmi was subjected to workplace bullying and harassment during the period 2009 to 2012. [23] The respondents accept that he was sprayed with water from time to time, but submit that this was accidental. I am satisfied that Mr Elmi was sprayed deliberately as well as accidentally. [24] I am satisfied that fat, and possibly blood clots, were deliberately thrown at Mr Elmi. It is not to the point that they might have been thrown by people working on the level above rather than by people in Mr Elmi’s work area as submitted by the employer. That fat was thrown is slightly supported by the evidence of Ms Kirsty Morgan, the employer’s human resources officer from 2009, who accepted that -- 5 of 8 -- 6 name calling and throwing of fat had occurred, albeit she did not say that it was directed at Mr Elmi. [25] I am satisfied that Mr Elmi was subjected to verbal abuse, at times of a racist nature, and that highly offensive remarks were made in relation to his wife and mother. In particular the comments referred to in stressors 3 and 7 were made as described by him. [26] I am satisfied that he was regularly called names and occasionally jostled by other workers during breaks. [27] I am satisfied that Nicholas Skeen tossed a burning cigarette at the appellant’s feet and that it landed inside one of his boots. It is not clear whether this was a deliberate action. [28] Although I am satisfied that occasionally other workers would fail to properly stun beasts, with the result that they would thrash about on the killing table, or occasionally run away, I am not satisfied that this was done deliberately. [29] Similarly, I am satisfied that occasionally the flow of beasts reaching Mr Elmi would slow, with the result that there was a build-up of them, making it difficult for him to catch-up. However, I am not satisfied that the disruption to the flow was deliberate. [30] I prefer Mr Elmi’s evidence in relation to the matters referred to in paragraphs 23, 24, 25 and 26 of these reasons to that of the witnesses called by the respondents. I do so based largely on his demeanor in the witness box, as well as that of those who denied having bulled him. Although Mr Elmi was shown to have been mistaken in relation to some of the specific instances of bullying behavior, and was occasionally prone to exaggeration, I am satisfied, on the balance of probabilities, that he was essentially a truthful witness and that the events set out in those paragraphs occurred. [31] The evidence of the witnesses called on behalf of the respondents in relation to these matters is largely to the effect that, apart from some accidental spraying and the general use of swear words, the events described by Mr Elmi did not occur. They painted themselves too pure. I do not accept their denials. [32] There is some corroboration of Mr Elmi’s story to be found in the documents. In early 2011 he complained to a foreman about the treatment he was receiving from some of his co-workers and was sent to the HR department which arranged an appointment for him with a counseling service.5 The notes of his interview on 3 February 2011 indicate that his presenting symptoms were "bullying/harassment/discrimination at work". He alleged that he had been called names, including "nigger", sworn at, shouted at and being ignored. The employer tendered a bundle of documents comprising what appear to be file notes from Mr Elmi’s personnel records.6 The file notes range from 28 March 2011 to the date of the incident that led to the termination of his employment on 21 December 2012. It is evident from those notes that Mr Elmi had been complaining about his alleged 5 T1-36 – 37, EX A2. 6 Ex E2. -- 6 of 8 -- 7 bullying in terms very similar to those found in his statement of stressors for some considerable time. As Mr Elmi did not say in these proceedings that he was called a "nigger" I do not make a finding that he had been. However, I do not accept the employer's submission that this failure detracts from his credibility. He was not cross-examined about this issue. [33] Of course these documents do not go to prove that the conduct occurred, but they do demonstrate that Mr Elmi was relatively consistent in his complaints. [34] The employer points to inconsistencies between Mr Elmi’s evidence and the file notes made by his general practitioner in 2007.7 The doctor was not called and the notes were not directly put to Mr Elmi. Given the extremely abbreviated nature of the notes I would not draw any conclusions about the veracity of Mr Elmi’s evidence in relation to what he told his doctor. I would similarly not draw any inferences from his failure to attend an appointment with a psychologist, Dr Spiller in 2010. Her very brief notes of what he told her are no more than that. [35] It may be the case that, as a result of the deliberate bullying, Mr Elmi became hypersensitive and misinterpreted some innocent occurrences as being deliberately directed at him. Some spraying of water may well have been innocent as might have been the failure to stun an animal properly or the delayed delivery of animals to him leading to a log-jam of animals waiting to be slaughtered. Although it was suggested that Mr Elmi might have misperceived all of the matters that he complains of; that all of the events were innocent, I do not accept that this was the case. There was no evidence led to suggest that he was delusional or paranoid or that he had suffered from his personal injury prior to 2009. Conclusion [36] Mr Gray, in his written submissions referred to a large number of authorities going to the issues of the meaning of the components of the compendious requirement of s 32; "arising out of", "in the course of employment" and "significant contributing factor". It is not necessary to go to those cases because in this case it is not contentious, and I accept, as Mr Gray wrote: "…where the worker does not adequately prove the work activities, circumstances or events that are said to have the requisite causal link with his or her injury, putting aside whether or not a finding can still be made that the injury arose out of, or in the course of, the employment the appropriate finding is that employment is not a significant contributing factor."8 [37] It is evident that, on the facts as I have found them, Mr Elmi’s personal injury arose out of, or in the course of his employment with the employer. It resulted from the bullying to which he was subjected. It is also evident that the employment was a significant contributing factor to the personal injury. It was not merely the setting or background in which the injury occurred;9 it was the result of the actions of those with whom Mr Elmi worked as part of his employment. 7 Ex R6. 8 Respondent's Written Submissions, 10 July 2014, 36. 9 Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100. -- 7 of 8 -- 8 [38] Although it is not necessary for me to so find, I am inclined to the view that, if it was Mr Elmi’s perception of some of the events, such as deliberate incorrect knocking, that caused or contributed to his psychological injury, it seems logical to conclude that his hypersensitivity and his reaction to innocent events is sufficiently linked to the bullying, that I have found did occur, to warrant a finding that it also arose out of, or in connection with, the employment which was a significant contributing factor to the injury. [39] The employer faintly argued that the injury is excised from the s 32 definition of injury by operation of s 32(5) of the Act. There is nothing in the evidence to support a submission that Mr Elmi’s injury arose out of, or in the course of, reasonable management action or his perception or expectation of reasonable management action. [40] It follows that the appeal must be allowed and an order made that Mr Elmi’s claim should be accepted. I will also order that the respondent pay Mr Elmi's costs. -- 8 of 8 --