Dunn v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 9

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dunn v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 009 PARTIES: Dunn, Gordon (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2011/468 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 17 January 2014 HEARING DATES: 30 September, 1, 2, 3 and 4 October 2013 30 October 2013 (Appellant's submissions) 5 November 2013 (Respondent's submissions in reply) MEMBER: Industrial Commissioner Fisher ORDERS: 1. That the appeal be dismissed. 2. The decision of the Regulator is confirmed. 3. Costs be reserved for further argument. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Stressors not consistent - Differing interpretations of specialist medical opinion - Over period of time injury - Injury resolved and then aggravated - Aggravation of adjustment disorder - Appellant a worker - Onus for appellant to establish that he suffered a personal injury and that it arose out of or in the course of his employment and employment was a significant contributing factor - Appellant wearing medals not entitled to wear - Not a witness of credit - Accepted appellant sustained a personal injury - Whether management action taken was not reasonable or taken reasonably - Whether employment a feature in aggravation of injury - Finding employment not a significant -- 1 of 9 -- 2 contributing factor - Section 32(5) not enlivened - Injury not withdrawn from s 32(3) by the operation of s 32(5) of the Act - Appeal Dismissed. CASES: Workers' Compensation and Rehabilitation Act 2003, s 11, s 32(3)(b), s 32(5) Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <hppt://www.qirc.qld.gov.au> Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 APPEARANCES: Mr R. Pack, Counsel instructed by CBC Lawyers for the Appellant. Dr M. Spry, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), for the Respondent. [1] Gordon Dunn (the Appellant), has appealed against the decision of Q-COMP which confirmed the decision of WorkCover Queensland to reject his application for compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Since then the Act has been amended with the result that Q-COMP has been abolished and replaced by the Workers' Compensation Regulator, Simon Blackwood (the Regulator). In this decision the Regulator is used in place of Q-COMP. [2] The proceedings concerning this appeal took many twists and turns. One reason for this was that the stressors relied on as being causative of the injury did not remain consistent. Another reason was the differing interpretations placed on the specialist medical opinion of Dr Michael Likely, Psychiatrist, which had been obtained by the Appellant. The Appellant relied on Dr Likely's written opinion to assert that he had sustained an over period of time injury commencing in 2008 with the final decompensation occurring in December 2010. However, the Regulator submitted that Dr Likely's opinion was that Mr Dunn had sustained an injury which had resolved and then had been aggravated. [3] Regrettably, although the written opinion from Dr Likely had been provided on 12 December 2012, no clarification had been sought from Dr Likely as to the correct interpretation. In addition, both WorkCover Queensland and the Regulator had approached the assessment and review of Mr Dunn's claim as if it was the one injury. [4] It was not until Dr Likely gave oral evidence on the third day of the hearing that his opinion could be clarified. In answer to a question posed by the Queensland Industrial Relations Commission (the Commission), Dr Likely said that he had not examined Mr Dunn in 2010. Accordingly, he relied upon the report of Dr Bell, psychiatrist; Dr Gibney, General Practitioner and Fraser de Groot of Townsville Psychotherapy Ltd to opine that Mr Dunn was injured at work in 2008 onward and by October 2010 Mr Dunn was fit to return to work. There was then a further -- 2 of 9 -- 3 decompensation in Mr Dunn's condition which he was content to describe as an aggravation of the adjustment disorder that Mr Dunn suffered from 2008 onwards. [5] This evidence led to further debate between the parties about the nature of the Appellant's case and the stressors to be relied on. Ultimately, the Appellant accepted that the appeal "only concerns an aggravation injury" such that "the events which transpired at the Mossman Station before 2010 are irrelevant because Mr Dunn's injury arose following 'ANZMI' publishing a photograph of Mr Dunn in his QAS uniform and medals he was not entitled to wear." However, certain events in 2010 leading to the ANZMI publication were considered to be relevant to the injury. [6] Ultimately, the Appellant relied in the hearing on the following stressors: 1. Harassment from Acting Officer in Charge, J. Andrews and Officer, A. Wemm to discredit the Appellant and reduce the Appellant's prospects of promotion within the Queensland Ambulance Service Mossman Station; 2. Harassment from Acting Officer in Charge, J. Andrews and Officer, A. Wemm and/or other employees, officers and servants of the Queensland Ambulance Service by providing a photograph of the Appellant and information concerning the Appellant to a website called "Australian and New Zealand Military Impostors (ANZMI)" to discredit him and reduce his prospects of promotion within the Queensland Ambulance Service; 3. Failure by the Queensland Ambulance Service to debrief the Appellant following the outcome of the complaint by Acting Officer in Charge, J. Andrews to the Department of Defence concerning medals worn by the Appellant on his ambulance uniform including failure by the Queensland Ambulance Service to keep confidential among its employees, servants and officers the substance of the complaint and the outcome thereof; 4. Failure by the Queensland Ambulance Service to inform, warn or advise the Appellant that an ANZMI Investigator, Bill Hobson had contacted a member of the Queensland Ambulance Service, Andrew Hebbron, Executive Officer of the Commissioner by telephone and email expressing an intention to expose the Appellant on the ANZMI website; and 5. Failure by the Queensland Ambulance Service to secure an internal document in its possession and/or control namely a photograph of the Appellant and/or a Statutory Declaration or document concerning the Appellant wearing medals on his ambulance uniform and which has come into the possession of the ANZMI website. [7] In written submissions for the Appellant the first stressor above, Stressor 3, was not pursued. The Commission will not then consider this stressor in this decision. [8] The parties agree, and the Commission accepts, that Mr Dunn was a worker within the meaning of s 11 of the Act at the relevant time. The Regulator put in issue all of the remaining elements of s 32(3)(b) of the Act. The Appellant submits that s 32(5) is relevant to the determination of this appeal, however, the Regulator does not -- 3 of 9 -- 4 accept that this provision arises for consideration. The onus rests with Mr Dunn to establish that: (a) he suffered a personal injury; (b) that the injury arose out of or in the course of his employment; (c) that employment was a significant contributing factor to his injury; and (d) to negative any issue under s 32(5) raised by his own evidence.1 The relevant facts [9] Mr Dunn first joined the Queensland Ambulance Service (QAS) in 1984. He left the QAS to join the Australian Defence Force (ADF) in 1995. Mr Dunn returned to employment at the QAS in 2004. From 2007, and including the period of his employment at the Mossman Ambulance Station, Mr Dunn was a member of an active reserve unit in the ADF. It is also pertinent to note that Mr Dunn's wife had also been a serving member of the ADF. [10] In May 2010, Mr Dunn agreed to have his photograph taken by a member of the Local Ambulance Committee (LAC) to be shown at a function in August 2010. After the photograph was taken Mr Dunn said he realised he was wearing medals that he was not entitled to wear. [11] In June 2010, Mr Dunn received a telephone call from Warrant Officer Michael Landy of Mr Dunn's active reserve unit in the ADF advising that a complaint had been received of Mr Dunn wearing medals that he was not entitled to wear. During the conversation Mr Dunn asked Warrant Officer Landy multiple times who had made the complaint but he would not reveal the name of the complainant. Specifically, Mr Dunn asked Warrant Officer Landy if it was Mr Wemm, another paramedic at the Mossman Ambulance Station, who had complained. Warrant Officer Landy said it was not Mr Wemm, however, Mr Dunn did not believe him. Mr Dunn then asked if James Andrews, the Acting Officer in Charge at the Mossman Station, had made the complaint. Apparently Warrant Officer Landy refused to identify the person on the grounds of privacy. [12] Mr Andrews acknowledged contacting the Department of Defence to advise that Mr Dunn was wearing medals that he was not entitled to wear. He said the Department of Defence asked him to supply a Statutory Declaration to that effect, which he did on 19 May 2010. Attached to the Statutory Declaration was the photograph taken at the Mossman Ambulance station in May 2010. Mr Andrews also said that he spoke to his Area Director, Mr Martin, prior to sending the Statutory Declaration and kept him informed of his actions. In evidence both Mr Andrews and Mr Wemm denied providing the photograph to the ANZMI. [13] On 1 July 2010, Mr Dunn sent an email to Mr Wemm, then the Acting Officer in Charge of the Mossman Station, asking him not to release photographs of Mr Dunn without his permission and to return any photographs which had been taken of him together with any negatives. Mr Dunn did not receive a response to his email. 1 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <hppt://www.qirc.qld.gov.au> -- 4 of 9 -- 5 [14] On 2 September 2010, Andrew Hebbron, then the Executive Officer, Office of the Commissioner, QAS, received a telephone call followed by an email from Bill Hobson, an Investigator for ANZMI. In the email Mr Hobson advised that "it is our intention to expose Gordon Dunn as a 'Wannabe' in the next few weeks." A photograph was attached, which was a copy of the one taken at the Mossman Station in May 2010. Mr Hobson informed Mr Hebbron that Mr Dunn was "falsely wearing" certain medals and "his true entitlement will be shown on our website entry." Mr Hebbron informed the then Commissioner of the advice so that he could be aware of it in the event any media enquiries were received. He also forwarded a copy of the email to the Assistant Commissioner of the Far Northern Region (in which the Mossman Station was located) together with the comment that "[n]o action required just yet just wanted to see if you know of him." [15] On 9 December 2010, Mrs Dunn telephoned her husband to inform him that a photograph of him wearing medals that he was not entitled to wear had appeared on the ANZMI website. Mrs Dunn was very upset and had been verbally abused at work. Mr Dunn accessed the website to find that the photograph was the one that had been taken of him at the Mossman Ambulance Station in May 2010. Mr Dunn became enraged but did not cease work at that point. In his oral evidence Mr Dunn said that in mid-December 2010 he learnt from two co-workers that Mr Andrews had been responsible for disclosing information to ANZMI. The appearance of the photograph and the accompanying story on the website also attracted media attention at his home in Townsville on 31 December 2010 and caused both his wife and his mother emotional upset. [16] Mr Dunn decompensated in mid-December 2010. Consideration and Findings Credit [17] It became clear during his evidence that Mr Dunn had provided various versions of how he came to be wearing medals that he was not entitled to wear. Firstly, he told Warrant Officer Landy that they belonged to a friend who had died and he was wearing them out of respect. However, in Mr Dunn's statement to the Department of Defence provided as part of an investigation into the matter, he said he was wearing them as he collects medals and ribbons as a hobby. In cross-examination Mr Dunn said this statement was a mistake and that it was his son who collected medals and ribbons as a hobby. In other evidence to the Commission Mr Dunn said his wife had placed the ribbons collected by him on to his paramedic uniform. It was this version that Mr Dunn pressed under cross-examination. This is despite his wife formerly having been a serving member of the ADF. Mr Dunn also asserted that when he put his uniform on the morning the photograph was taken that he did not look down to see which medals were there. Given that there were a number of medals on his uniform (when the ribbon bar he would normally wear would properly hold only one) this evidence simply is not credible. This, together with the varying versions, and without referring to other difficulties with Mr Dunn's evidence, all leads to the conclusion that Mr Dunn was not a witness of credit. -- 5 of 9 -- 6 Elements of s 32(3) [18] The Commission accepts Dr Likely's opinion that Mr Dunn sustained a personal injury, viz., Adjustment Disorder with mixed anxiety and depressed mood (chronic). The issues that remain for determination are whether the aggravation injury arose out of or in the course of employment and whether employment was a significant contributing factor to the aggravation. Added to these matters is the Appellant's contention that s. 32(5) is relevant because the management action taken was not reasonable or taken reasonably. [19] The Appellant contends that Dr Likely's opinion supported a finding that employment was a significant contributing factor to the injury. However, the Regulator contends that this is not a fair reading of Dr Likely's evidence. The Commission accepts the submission of the Regulator. As mentioned earlier, Dr Likely's written opinion did not clearly distinguish between an injury and an aggravation of an injury and the oral evidence relied on by the Appellant in the submissions did not take account of this distinction. Further, reference is made by Dr Likely in his written opinion to the "precipitant" for the recurrence of Mr Dunn's symptoms, i.e., the aggravation, in the following terms: "…appeared to be his appearance on a website which ostensibly revealed the identity of ex-military personnel wearing medals to which they were not entitled. Mr Dunn was featured on the website and felt 'slandered and abused'." [20] Dr Likely's report also refers to the media attention, the harassment of Mr Dunn's wife and Mr Dunn's ostracism from the veteran community caused by the ANZMI website disclosure. These, together with the lack of concern shown by those associated with the ANZMI website, also contributed to Mr Dunn's decompensation. Although later in his report, Dr Likely identifies a contributing factor to be the second stressor set out in paragraph [6] above, his report and oral evidence do not disclose the basis upon which he reached that opinion, other than relying on information provided by Mr Dunn. [21] The key issue in this appeal is whether Mr Dunn's employment is a significant contributing factor to the aggravation of his injury. There are certainly elements of this case that relate to his employment. However, on closer analysis, the Commission does not consider employment to be a significant contributing factor to Mr Dunn's injury. Dr Likely's opinion is that the aggravation of the injury arose out of Mr Dunn's public exposure wearing medals that he was not entitled to wear; the subsequent media attention that created and the emotional upset that caused to Mr Dunn and his family. These events are not employment related. Admittedly, on the day the photograph was taken, the medals were pinned to his QAS uniform. While the wearing of a uniform was a requirement of Mr Dunn's job as a paramedic, the attachment of medals to the uniform was not a feature of, nor was it incidental to, the work he was required to perform as a paramedic. In fact, the evidence from Mr Andrews was that he had raised concern about infection control by the wearing of medals with Mr Dunn. (I note that this matter was not raised with Mr Dunn while giving his evidence.) The Commission cannot make a finding that the wearing of medals was an exigency of his employment. The word "employment" in the context of s 32 of the Act refers to "what the worker in fact does during the course of -- 6 of 9 -- 7 employment."2 Further, the exigencies of the employment must contribute in some significant way to the occurrence of the injury.3 Such a finding is necessary for employment to be a significant contributing factor to the (aggravation) injury. For these reasons I am unable to find that s 32(3)(b) of the Act has been satisfied. Section 32(5) [22] In light of the finding that employment was not a significant contributing factor to the injury, it is then unnecessary to deal with the submission put on behalf of Mr Dunn in relation to s 32(5) of the Act. However, for the sake of completeness, the Commission will respond to the submissions that the following events contributed to the aggravation of Mr Dunn's injury and were not reasonable management actions taken in a reasonable way: "1. Mr Dunn was never advised by the QAS of its intention to release a statutory declaration and photograph of him wearing medals he was not entitled to wear to the Australian Army. 2. QAS failed to debrief Mr Dunn following that decision. 3. Mr Dunn was never advised by QAS that it had been contacted by ANZMI on 2 September 2010 with advice that it would publish a photograph of Mr Dunn in his ambulance uniform wearing medals he was not entitled to wear 'in a few weeks' being the same photograph QAS had previously released to the Australian Army. 4. QAS failed to debrief Mr Dunn after that decision." [23] Mr Andrews freely conceded that he had contacted the ADF with his concern about Mr Dunn wearing medals that he was not entitled to wear and subsequently provided a Statutory Declaration to that effect. In light of this admission, the Appellant invited the Commission to make "a finding of fact that Mr Andrews and/or Mr Wemm and/or other employees, officers and servants of the QAS released confidential information to the ANZMI website and this amounted to harassment for the purpose of discrediting the Appellant because there could be no other purpose." Further, that the Commission should make a finding of fact on the balance of probability that QAS released confidential information to ANZMI: that confidential information being any or all of Mr Dunn's photograph, Mr Andrews' statutory declaration and details of the LAC event in which Mr Dunn's photograph was shown. [24] Despite Mr Dunn's belief that either Mr Andrews or Mr Wemm provided the photograph to the ANZMI website, both Mr Andrews and Mr Wemm denied doing so. Certainly, Mr Andrews supplied information to the ADF but that provides no basis for finding that he also supplied information to ANZMI. In his Statement to the Department of Defence, and in his evidence in chief, Mr Dunn stated that two named employees of the QAS had told him that Mr Andrews was responsible for the notification to ANZMI, however, neither of these two employees were called to give evidence to the Commission. In fact, there is no evidence before the Commission at all that any employee of the QAS had initiated contact, let alone supplied 2 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 at [27]. 3 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 at [27]. -- 7 of 9 -- 8 "confidential information," as described to ANZMI. The mere fact that Mr Andrews supplied a Statutory Declaration attaching a copy of the photograph to the ADF does not automatically lead to a conclusion that this "triggered the ANZMI investigation and that investigation would never had occurred but for the initial release of the information" as alleged by the Appellant. The Commission has no evidence about what or who triggered the ANZMI investigation. Absent that evidence, the Commission cannot and does not make the findings of fact sought by the Appellant. [25] Moreover, the Commission does not believe that Mr Dunn was set up by the QAS to have his photograph taken wearing medals that he was not entitled to wear. As the Regulator noted in its submissions, had that been the case then the photographer would have ensured that all of the medals were clearly displayed. The photograph taken does not achieve this. [26] Mr Dunn became aware on 30 June 2010 that Mr Andrews had sent information to the ADF about Mr Dunn wearing medals that he was not entitled to wear. The following day Mr Dunn sent the email to Mr Wemm asking him to secure the photograph. In his Statement to the Department of Defence, he stated that after this he "forgot about the matter and did not hear any more about it" until 9 December 2010. This statement belies the contention that a relevant stressor is a failure to debrief Mr Dunn after Mr Andrews submitted his complaint to the Department of Defence. [27] The Commission accepts that Mr Dunn was not informed that Mr Hobson had contacted the QAS with advice of the intention to expose Mr Dunn as a military impostor. Mr Hebbron gave evidence that the QAS does not police which medals employees wear; it is considered to be a private matter. The Appellant challenges this view arguing that Mr Andrews, with the knowledge of his Area Director, raised the matter with the ADF. In his Statutory Declaration, Mr Andrews had identified himself as the Acting Officer in Charge of the Mossman Station and expressed concern that paramedics and the QAS were being called into disrepute by Mr Dunn's wearing of medals that he was not entitled to wear. However, s 32(5)(a) requires that the actions taken by management are in connection with the worker's employment. I am not satisfied that the submission of the Statutory Declaration to the ADF by Mr Andrews, with the knowledge of his Area Director, constituted an action in connection with Mr Dunn's employment. The action taken by Mr Andrews was to bring to the attention of the ADF that Mr Dunn was wearing medals that he was not entitled to wear. Although Mr Dunn's conduct reflected poorly on the QAS, Mr Andrews' action in notifying the ADF was an attempt to prevent Mr Dunn's misrepresentation of his military service to the community and was not in connection with his QAS employment per se. [28] For the above reasons, the Commission cannot find that s 32(5) is enlivened. [29] The Commission orders: 1. That the appeal be dismissed. 2. The decision of the Regulator is confirmed. 3. Costs be reserved for further argument. -- 8 of 9 -- 9 [30] In relation to costs, the Respondent is required to provide to the Appellant and lodge in the Registry a Schedule of Costs sought within 22 days of the date of release of this decision. Directions will then be issued to schedule submissions to be made on the matter of costs. [31] Order accordingly. -- 9 of 9 --