Davis v Q-COMP [2013] QIRC 112

CITATION: Cleavon Davis AND Q-COMP (WC/2012/332) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Cleavon Davis AND Q-COMP (WC/2012/332) COMMISSIONER BLACK 2 August 2013 DECISION Introduction [1] Mr Cleavon Davis (the Appellant) lodged a notice of claim with WorkCover Queensland (the Insurer) on 18 October 2011 for an unassessed psychological injury sustained over a period of time between 26 May 2008 and 1 March 2011. By its decision dated 12 June 2012, the Insurer rejected the Appellant's application for workers' compensation. On 13 July 2012, the Appellant then lodged an application for review of the Insurer's decision with the Review Unit of Q-COMP (Q-COMP). By its decision dated 13 August 2012, Q-COMP confirmed the Insurer's decision to reject the Appellant's notice of claim for damages. The Appellant now appeals Q-COMP's decision pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Issue for Determination [2] The issues for determination in this appeal are whether the Appellant suffered a personal injury within the meaning of s. 32 of the Act and, if so, whether the injury was excluded by virtue of s. 32(5) of the Act. [3] Q-COMP conceded that the Appellant was a "worker" as is defined by the Act. It was also conceded that the Appellant suffered an anxiety disorder as diagnosed by Dr Oelrichs, but the Respondent did not concede that the Appellant suffered an injury as defined within s. 32(1) of the Act. Q-COMP took the view that no causal link can be established between employment and the disorder diagnosed that would bring the Appellant within s. 32(1) of the Act. [4] Further, or in the alternative, Q-COMP submitted that the Appellant has brought himself within s. 32(5) of the Act by virtue of his Notice of Appeal and also by virtue of the evidence given during the course of the hearing. In this regard, Q-COMP asserts that the Appellant must establish on the balance of probabilities that he is excluded from the operation of s. 32(5) of the Act. [5] The facts relied upon in the Notice of Appeal were listed as follows: "a. During the course of the Appellant's employment with Queensland Health as a hospital liaison officer he had a high workload and a stressful role which involved him mourning with families of patients. As part of his role he was also involved in verbal altercations with patients and their families; b. The Appellant verbally reported the stressful nature of his role to his employer and did not receive any support or assistance from his employer notwithstanding that his employer knew that he had attempted suicide.". [6] In its final submissions the Appellant clarified the basis upon which it was prosecuting the appeal in the following terms: "In the early exchanges about preliminary matters, the Appellant's Counsel indicated that the allegations at 6(b) above, would not be pressed. However, it became apparent that as the evidence progressed, those issues were germane for the Appellant and that aspect of his experience was the subject of evidence in the hearing of the Appeal. Therefore, the issue of support and counselling, in the context of the role of a Health Liaison Officer, was an issue joined on Appeal and is dealt with in these submissions. That concession made, it remains the Appellant's contention that it was essentially the stressful nature of the work listed within 6(a) above, which were the real stressors contributing to the psychiatric injury he then suffered in or about January 2011.". [7] The stressors raised by the Appellant were: -- 1 of 25 -- 2 (a) The requirement to sit with indigenous patients and to mourn with families after the passing of patients at the Princess Alexandra Hospital; and (b) The stress which accompanied the situations of conflict which arose in the Princess Alexandra Hospital role. [8] The questions for determination in this appeal are: (a) Did the personal injury arise out of or in the course of the Appellant's employment? (b) Was the employment a significant contributing factor to the injury? (c) Did the injury arise out of, or in the course of management action? (d) Was the management action reasonable and taken in a reasonable way? [9] Section 32 of the Act relevantly provides as follows. "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the workers' application for compensation.". Jurisdictional Documents [10] The jurisdictional documents [Exhibit 2] tendered by the Respondent were as follows: • Application for WorkCover Queensland Compensation dated 18 October 2011; • Decision of WorkCover Queensland dated 12 June 2012; • Q-COMP Application for Claim Review dated 13 July 2012; • Q-COMP Review Unit Decision dated 13 August 2012; and • WCR Notice of Appeal dated 24 August 2012. Nature of Appeal [11] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant. Standard of Proof [12] The standard of proof upon which an Appeal of this type must be determined is that of "on the balance of probabilities". Evidence [13] During the course of the proceedings, evidence was provided by six witnesses. The witnesses for the Appellant were as follows: • Mr Cleavon Davis; • Dr Catherine Oelrichs; • Mr Ashley Currie; and • Mr Gary Cowburn. The witnesses for Q-COMP were as follows: • Ms Julie Connell; and • Ms Carmen Forster. -- 2 of 25 -- 3 -- 3 of 25 -- 4 Overview [14] Davis commenced work at the Princess Alexandra Hospital (PAH) on 26 May 2008 in the capacity of Aboriginal and Torres Strait Islander Liaison Officer - Men's Business. The common description for the position was Health Liaison Officer or HLO. The indigenous health liaison role was not new; the role had been in operation within PAH for approximately 10 years prior to Davis joining the organisation. [15] His role was to act as a liaison or support person for indigenous people who were receiving treatment at the hospital or who were family members or friends of patients. The role, in part, sought to overcome some traditional difficulties experienced by indigenous people accessing healthcare in terms of communication around clinical issues and misunderstandings arising from cultural variances. The families and friends of patients also had particular needs and the HLOs assisted these people in a variety of ways. [16] Davis found some aspects of the HLO role stressful. On occasions Davis would be required to intervene in disputes between family members or friends of patients and try to resolve situations involving physical conflict. The role also required Davis, from time to time, to attend dying patients and support friends and family in the mourning process. Davis experienced stress and anxiety associated with these types of activities and advised his line manager, Carmen Forster (Forster), accordingly. [17] Davis alleged that Forster did not take his complaints seriously and failed to provide support and guidance. He also criticised his indigenous co-ordinator for failing to act on his concerns. Matters climaxed in early 2011 following meetings that Forster convened with Davis on 17 January and 24 January 2011. Davis alleged that Forster conducted these meetings in a culturally insensitive manner and made discriminatory and racist comments to him. [18] During the meetings on 17 and 24 January 2011 Forster had asked Davis to respond to questions which suggested that he had not complied with his obligations in specified areas, including whether he had attended for work on 23 and 24 December 2010 in accordance with his roster, whether he had entered statistics as required, and whether he had correctly filled in his time sheet and annual leave form. [19] On 1 February 2011 Davis lodged an internal staff complaint against Forster, following which he commenced a period of unpaid leave which ultimately extended for approximately one year, and from which Davis never returned to work. Davis resigned his employment from the PAH with effect from 23 February 2012. [20] Davis was diagnosed with an adjustment disorder with depressed anxious mood by Dr Oelrichs on 4 July 2011. [21] On 18 October 2011, Davis lodged a notice of claim for damages relating to events occurring over the course of his employment with the PAH. Medical Evidence [22] The medical evidence considered in the proceedings comprised: • complete record of Davis's consultations at the Aboriginal and Torres Strait Islander Community Health Service (March 2003 to January 2012) [Exhibit 14]; • referral from Dr Nuske dated 22 April 2009 [included in Exhibit 14]; • Princess Alexandra Hospital Mental Health Service records (5 June 2010 to 30 June 2010) [Exhibit 15]; • report of Dr Catherine Oelrichs dated 25 July 2011 [Exhibit 27]; • supplementary report of Dr Catherine Oelrichs dated 12 August 2011 [Exhibit 27]; and • oral testimony of Dr Catherine Oelrichs [Transcript: 3-41 to 3-59]. [23] According to the complete medical record [Exhibit 14], between 14 January 2008 and 1 March 2011, Davis visited the Aboriginal and Torres Strait Islander Community Health Service on 17 July 2009; 25 August 2009; 2 June 2010; 11 June 2010; 16 June 2010; 27 August 2010; 11 February 2011; and 28 February 2011. Most of the visits related to general ailments and did not include any reference to anxiety or workplace stress. [24] However, the 11 and 16 June 2010 visits related to anxiety. The note on 11 June stated: "came for review. Still depressed. Wishes to see a Psychologist. Requesting for a MHCP". The note on 16 June stated: "came for review. Has brought details of the Psychologist. Requesting a referral letter. Pt [sic] feeling better". These visits coincide with and relate to Davis's suicide attempt of 5 June 2010. [25] On 11 February 2011, Davis saw Dr Mary Woodward. Dr Woodward issued a workers' compensation certificate and provided a referral to a psychologist. In the referral [Exhibit 18], the psychologist is asked for an opinion regarding Davis's "depression, anxiety, work stress, and conflict at work with his manager". The note to the 28 February 2011 consultation stated: "came for a check up. Requesting a clearance to get back to work". -- 4 of 25 -- 5 [26] The referral from Dr Nuske dated 22 April 2009 stated that Davis was suffering from "generalised anxiety, and occasional panic attacks. He confronts stressful situations at work and has considerable pressure placed on him and would like to debrief about this, and consider strategies to help him deal with this anxiety. He also has relationship difficulties with his current partner who is pregnant. He has had suicidal thoughts in the past but has never considered acting on them". An attachment to the referral was a Mental Health Care Plan completed on 22 April 2009 and signed by Dr Nuske. An extract from the Plan is set out below: PRESENTING ISSUE(S) What are the patient's current mental health issues Anxiety OUTCOME TOOL USED HAD Scale 13 DIAGNOSIS Anxiety PATIENT NEEDS/MAIN ISSUES GOALS TREATMENTS REFERRALS Anxiety Work-related stress Home-related stress Strategies to help manage anxiety Debriefing stressful circumstances at work Debriefing & strategies to help Counselling, CBT Psychologist [27] Attached to the Mental Health Plan was a 'HAD' questionnaire which, when completed, produced an Anxiety score and a Depression score. The Anxiety score recorded by Davis was 13 and the Depression score was 4. According to the scale included on the form, a score of "7 or less" for Depression was in the "normal range", while a score of "11 or more" for Anxiety represented "significant anxiety". [28] According to the PAH Mental Health Service records, Davis was admitted to the Emergency Department of the Mental Health Service on 5 June and 25 June 2010 following suicide attempts. A matter in contention is whether Davis's admission to PAH on 5 June and 25 June 2010 was solely attributable to non work-related stressors or whether there was a connection with work-related stressors. A review of Exhibit 15 discloses that references were made to work or to work-related stressors in the following extracts from the records: • "Mr Davis is very committed to his job. He does however have to deal continually with grief and loss and he now realises that his work and life had become ery [sic] unbalanced. He said he has never been physically abusive to his partner or children but he admits that he had become withdrawn and irritable. He moved out of the home because he did not want to towards his partner. He has workplace supervision but he has no one that he can really express his own personal issues with. He thought he had to be the strong kan [sic] at home and regrets that he did not share himself emotionally with his partner more. He says he and his partner have drifted and he can't at ths [sic] time see his way back through he wants too.". [Consumer Assessment 5 June 2010 - History of Presenting Complaint - Document No. 6] • "History of depressed mood for at least three months. ? Work related emotional exhaustion due to exposure to continual grief and loss among his constituents affecting his hime [sic] life.". [Consumer Assessment 5 June 2010 - Psychiatric History - Document No. 6] • "Depressed mood. Tired and flat. Mood and affect congruent. Poor sleep, his work has been a good distraction but going home to the empty flat has become hard to bare. Has had more to drink then he usuaky [sic] would this week. Hd [sic] been drinking the night he tried to gas himself. Usual has 5-8 beers on Friday nights and is dry at all other times. Appetite decreased. Feels even over his work at present. Says he would not kill himself and would prefer not to take medication. Admis [sic] he needs to talk.". [Consumer Assessment 5 June 2010 - Mood and affect - Document No. 7] • "Mr Davis is considering taking some time off when he can but he needs the distraction at present. He is amenable to contacted (sic) the employee counselling service ASAP.". [Consumer Assessment Plan 5 June 2010 - Document No. 12] • "Spoke about his frustration & stress at response by his boss at PAH - Julie Connell wrt [sic] his request for time off (rec leave). Another staff member is away at present and he cannot take leave. He states he didn't have an opportunity to explain his circumstances. Stressed that 'I'm asked to put work before family!'". [Progress notes: 17 June 2010 - Document No. 17] -- 5 of 25 -- 6 • "PLAN: With Cleavon's consent ACT liaise i [sic] his boss explain nature of current need for MHS involvement - dep'n and reinforce benefit if possible for him to have time off work.". [Progress notes: 18 June 2010 - Document No. 18] • "R/V'd as Depressed Mood. Adjustment diff. in the context of predisposing factor - work stress & acute precipitant - R'Ship stress - ? temp. separation.". [Progress notes: 18 June 2010 - Document No. 19] • "Workplace/finance/relationship stressors.". [Progress notes: 21 June 2010 - Document No. 23] • "Ongoing issues with work stressors and relationship breakdown. Today partner told him that she thinks their relationship is over.". [Adult Mental Health Service Consumer Intake form - 25 June 2010 - Document No. 30] • "Currently feeling that he is not supported in his job as ATSI Liaison for PAH. Have discussed avenues of seeking support from his district coordinator and Cleavon keen to see whether they can offer more support than the hospital.". [Consumer Intake form - 25 June 2010 - Document No. 30] • "Significant work stress and relationship issues.". [Consumer Intake form - 25 June 2010 - Document No. 30] • "Acknowledges need for more support within his work.". [Consumer Intake form - 25 June 2010 - Document No. 31] [29] These references support a conclusion that there were a mix of stressors present in Davis's life at the time of his admission to PAH on both 5 June and 25 June 2010. Notwithstanding this mix, the evidence also supports a finding that the dominant circumstances contributing to Davis's admission to the PAH Emergency Department on 5 June and 25 June 2010 were not work-related but arose primarily from relationship stressors. This is best illustrated by the description of the presenting problem on the Consumer Intake form dated 25 June 2010 where it was stated that Davis impulsively commenced self-harm when his partner "told him that she thinks their relationship is over" [Document 30]. Further, the history of the presenting complaint made in relation to the admission on 5 June 2010 [Document 6] included the following after it was recorded that Davis had moved out of his family home and was living alone in a flat by himself: "After 8 weeks he realised he had made a mistake and that he very much missed his partner and family. She had recently said she wanted to move on with her life and this had frightened him. She also was not willin [sic] got get counselling at this time. He was afraid things had gone too fr. uthe [sic] wanted to try and make his relationship work". Finally, the statements attributed to Davis to the effect that "his work has been a good distraction" [Document No. 7] and that he "is considering taking some time off when he can but he needs the distraction at present" [Document No. 12] diminish from the prospect that work-related factors contributed to his admission to hospital on 5 and 25 June 2010. [30] Another matter in contention in the proceedings was whether Davis's employer had encouraged Davis to access counselling for the stress and anxiety that he had been experiencing at work. A related consideration went to whether Davis had received counselling during the course of his employment with the PAH. The medical evidence points to a result that Davis accessed counselling following a referral from Dr Nuske on 22 April 2009 and after a referral from Dr Krishnamoorthy on 16 June 2010. He also sought a referral from Dr Woodward on 11 March 2011. Additionally, a number of references to counselling were included in the PAH Mental Health Service records [Exhibit 15]: • a Care Plan Item completed by a Registered Nurse on 5 June 2010 stated that the problem or issue was "depression" and listed the objective or goal as "Provide support until appointment with Staff counselling can be arranged". The intervention, strategy or activity was described as "Referral to ACT for phone support or more intense follow up if indicated - Client to arrange appointment with PAH Staff counselling and attend". • "Mr Davis is considering taking some time off when he can but he needs the distraction at present. He is amenable to contacted [sic] the employee counselling service ASAP. Referred to ACT with the clients permission." (Under the heading of "PLAN" [Document 12]) • "Plan: accessing counselling from internal services at the PAH as currently an employee. Phone no's for psychologist and psychiatrist provided plus discussed referral from GP for a psychologist through Better outcomes". [Document 14 - PAH Mental Health Service progress notes - 6 June 2010] • a progress note indicates that an intern psychologist tried to make contact with Davis via mobile. A separate note refers to "plans to link with psychologist via GP". [Document 15 - PAH Mental Health Service progress notes - 9 June 2010] -- 6 of 25 -- 7 • A progress note on 12 June 2010 indicated that a further attempt to contact Davis was made a few times on mobile, but there was no response. The note was signed by a psychologist. [Document 16 - PAH Mental Health Service progress notes - 9 June 2010] • A progress note indicated that,:"psychology referral is still progressing - sees GP for MHCP on Wednesday.". [Document 17 - PAH Mental Health Service progress notes - 14 June 2010]. . The GP appointment on Wednesday refers to an appointment to see Dr Krishnamoorthy on 16 June 2010. • The Consumer Intake Form dated 25 June 2010 included the following "Collateral from psychologist Katayoon Haghseresht. Cleavon did attend a 1 hr session with her this afternoon. She did not consider him a risk of self harm. He was positive about the future and had good plans for the weekend". Also, the following reference is included on the third page of the same form "Has psychologist appt next Fri at 4pm". [Documents 30 and 32] [31] In the circumstances, it appeared that Davis accessed a counselling program on at least three occasions during the course of his employment with the PAH arising from the referrals of Dr Nuske on 22 April 2009, Dr Krishnamoorthy on 16 June 2010 and Dr Woodward on 11 February 2011; however, neither of the medical practitioners nor the treating psychologists were called to give evidence and, while it may be accepted that Davis sought the counselling because of a mix of stressors, I am not able to make a finding based on a review of the medical evidence which attributes weight or influence to each of the relevant stressors. [32] The Mental Health Plan prepared by Dr Nuske in 2009 provided for a referral for up to two groups of six sessions. Dr Oelrichs' report at page 5 refers to a statement made by Davis that he went back to his treating psychologist in January 2011 and that all in all he had up to seven sessions. These sessions would appear to emanate from Dr Krishnamoorthy's referral in June 2010. Dr Oelrichs' report at page 4 also refers to Davis attending five sessions with a psychologist called 'Kataylln'. This reference coincides with a reference in Document 30 of the PAH Mental Health Service records which refer to a psychologist named as Katayoon Haghseresht. These five sessions may be part of the seven sessions earlier referred to. [33] After the events of June 2010, Davis visited the Aboriginal and Torres Strait Islander Community Health Service on 27 August 2010 and saw Dr Chandra. This visit was not related to reasons of stress or anxiety. His next visitation to the Health Service was on 11 February 2011. [34] Davis's evidence about his admission to the PAH Emergency Department and his treatment by the PAH Mental Heath Service gives rise to a consideration of credit. The difficulty for Davis is that he challenges the veracity of contemporaneous medical records and essentially says that only those parts of the notes that are consistent with his current version of events are legitimate. In more particular terms, Davis appears to reject the presence or relevance of non-work stressors and emphasises the adverse impact of work-related stressors on his condition. The evidence is set out in the Transcript of the proceedings from 1-84 to 1-90. [35] Davis's criticism of the accuracy of the medical records appears to emerge from references in the progress notes which indicate that he wanted to continue to attend work because work was a good distraction for him. The clear implication here is that work provided some relief from his non-work stressors, including financial and relationship stressors, and that the work stressors might be less significant than Davis was contending. Davis's evidence is set out below [Transcript: 1-85]: "You'd been drinking the night you tried to gas yourself? Okay. And very down the bottom it says, 'Thought content.' And said, 'Constantly worried about losing family'? --- I don't think that I could say that it was a good distraction. I think most of these notes were put in by the psych to say it was. You think that these - these are incorrect, these notes? --- I think some of are correct, but some of them were incorrect.". [36] Davis also said in his evidence that the errors in the progress notes were a result of the PAH's failure to have an indigenous mental health worker on duty to assist Davis explain his circumstances to the attending clinical workers. This does not present as a plausible proposition given that Davis's role as an indigenous health liaison officer means that he is fully equipped to navigate whatever cultural divide might exist. "…And these progress notes are exactly what - why there should be an indigenous mental health worker that should have been there at the same time. How would that make a difference do you think? --- Then the writing in here would have been probably better. Yes, okay. What would it have said that you say is different? --- It would have made it accurate - my feelings and what I felt and I would have been comfortable speaking with that person --- -- 7 of 25 -- 8 All right? --- to write in the progress notes what I was really feeling.". [Transcript: 1-90] [37] Finally, despite the weight of evidence indicating that Davis's admission to the PAH following his suicide attempts was directly related to financial and family or relationship stressors, Davis denied that such factors were relevant [Transcript: 1-87]: "It says, 'Denied suicidal thought, place or interest - on interest at present. Has ongoing domestic issues.' Do you see that there? And again down the bottom--? --- At home, domestic issues? Yes. See--? --- I wasn't with my partner during that time. How can I have domestic issues?". [38] These responses diminish Davis's credibility. The PAH Mental Health Service notes in question are very detailed and there is no basis upon which I could conclude that the notes constitute anything other than an accurate record of what transpired following Davis's admissions on 5 and 25 June 2010. [39] Dr Oelrichs gave evidence in the proceedings. She had prepared a report based on an interview she conducted with Davis on 4 July 2011. The report, including a supplementary report dated 12 August 2011, was admitted into the evidence as Exhibit 27. Dr Oelrichs states that her report was based on information supplied by Davis at interview, from observations made during direct mental state examination, from psychological assessment, and from perusal of the Aboriginal and Torres Strait Islander (ATSI) Community Health Service records, the PAH Mental Health Service records, and TakeCare Psychology records. [40] Dr Oelrichs stated in the Introduction to the report that she interviewed and examined Davis regarding "a claim for damages for injuries reportedly sustained in a workplace incident from 26 May 2008". Dr Oelrichs said that Davis was "reportedly subjected to bullying in the form of racially discriminatory language by a supervisor". The Introduction also included the following paragraph: "He (Davis) stated that the 'trigger' for the whole issue had related to incidents which occurred at work on 17 and 24 January 2011 which involved him feeling that he had become quite humiliated and vulnerable in the workplace.". [41] The relevant conclusion in Dr Oelrichs' report is expressed on page 12 of the report where she defines the "nature and extent" of Davis's injuries as follows: "Mr Davis has developed what can be described using a DSM-IV diagnostic formulation as an Adjustment Disorder with depressed and anxious mood in regards to the circumstances within stressors he has been under in relation to his workplace since 2008 - in particular, according to Mr Davis's reports, the relationship with a supervisor from whom he describes feeling a lack of support and a level of lack of understanding of cultural factors.". [42] On page 5, the report under the heading "Current Specific Mental Health Symptoms" states inter alia: "He stated that he loved the work, but he found that he could not work with a person who did not understand his cultural background. He stated that, 'not once did she talk to me about patients'". [43] On page 6, the report states inter alia that "he states that he still feels 'afraid to go into the room with a female supervisor'". Also on this page, it is said that "he states that he had suicidal thoughts in 2010, as he felt that the difficulties he was having with his supervisor were 'going home with me' … he felt that 'no one was listening'". [44] On page 11, the report refers to consultation notes made by Dr Mary Woodward on 11 February 2011. The report includes the following: "Noted, 'A WorkCover claim of harassment and bullying from line manager'. GP, Dr Woodward, had noted 'Depression 2010, similar issues at work.'". [45] While the WorkCover Queensland claim relating to harassment and bullying is the subject of another application, it is significant that the extract from the report mentioned above also includes a reference to similar issues at work in 2010. [46] Finally, in an addendum to her main report, Dr Oelrichs states: "Mr Davis was distressed by the nature of the meetings of 17 January 2011 and 24 January 2011 that he had with his supervisor and that he discussed his emotional response to these meetings in his appointment with -- 8 of 25 -- 9 me on 4 July 2011. The emotional distress he felt at these meetings was incorporated in the body of the report and taken into account in my assessment of Mr Davis.". [47] Under the heading of "Summary and Conclusions", and on page 11, Dr Oelrichs' report states: "various records of TakesCare Psychology, dated 27 May 2011, confirm problems at work, noted other stressors relating to debts and wanting stability". [48] In summary, the medical evidence reflects on a turbulent period in Davis's life in which he was subject to a number of stressors, including significant non work-related stressors which led to attempts of self-harm being committed in June 2010. During periods of 2009, 2010 and 2011, Davis accessed counselling services after referral from GPs and in accordance with Mental Health Care Plans prepared by the GP. Away from work, Davis encountered financial and domestic (or relationship) stressors. At work, Davis experienced difficulty with aspects of his role and arising from a perceived failure of his supervisor to provide adequate support and guidance. Did the injury arise out of, or in the course of, employment and was the employment a significant contributing factor to the injury? [49] The Appellant is required to establish that he has suffered an injury and that the injury arose out of, or in the course of, employment. Employment must also be a significant contributing factor to the injury. These questions can be most efficiently answered by reference to the medical evidence. In this regard, Dr Oelrichs was the only medical practitioner to give evidence. Dr Oelrichs prepared a medico-legal psychiatric report based on an interview with the Appellant on 4 July 2011. The report is Exhibit 27 in the evidence. The report described the nature and extent of Davis's injuries as an adjustment disorder with depressed and anxious mood. [50] Q-COMP conceded that the Appellant suffered an anxiety disorder as diagnosed by Dr Oelrichs, but did not concede that the Appellant suffered an injury as defined in s. 32(1) of the Act. It was argued that no causal link has been established between employment and the disorder diagnosed by Dr Oelrichs that would bring the Appellant within s. 32(1) of the Act. [51] The Appellant submitted that corroborative evidence supports the Appellant's view that there was a causal link between employment and his decompensation. It was said that the relevant corroboration exists in the following forms: (a) The Appellant's evidence and testimony regarding these matters; (b) The clear references in both the Mental Health notes and the ATSI Community Health Service notes to stress emanating from dealing with grieving families and dying patients and also regarding conflict; (c) Ashley Currie's evidence that the Appellant's difficulties were mentioned to him; (d) Carmen Forster's evidence which confirms that the Appellant approached her in relation to difficulties caused by these aspects of the work; and (e) Gary Cowburn's evidence which confirmed that he has also struggled with the same aspects of the role as an HLO. [52] The Appellant submitted that whilst it is true that there are features of financial issues and domestic issues which are related in the relevant history, a full reading of the documented history provides the clear context that the Appellant's difficulties were also very much based in his work-related issues. [53] Doctor Oelrichs' report is based on information supplied by Davis, from observations made during direct mental state examination, psychological assessment involving a DSM-IV diagnostic formulation, and from a perusal of medical records. In her evidence Dr Oelrichs agreed that Davis's adjustment disorder arose from a combination of work and personal stressors [Transcript: 3-44]: "All right, okay. But in those notes there does appear to be some reference to financial issues? --- Yeah, there are a number of stressors mentioned in those notes. There were financial issues, then the workplace issues, and I suppose the summary would have been that they had - that he had stressors both at work and in his private life.". At Transcript 3-47, Dr Oelrichs is asked to provide clarification about work stressors: "I see. Okay. And what was it that he indicated to you was his major concern from the 26th of May 2008? --- Well, the - if you look at the body of my report, that his first - his initial concern had been the triggers that happened in the - reportedly happened in the meetings on the 17th and 24th of January, and then from that point then he had - he elaborated that there had been things going on over a period of time in the workplace since he had started.". -- 9 of 25 -- 10 At Transcript 3-49, Dr Oelrichs gives further evidence: "---as to what it is, but I'm just asking for your professional comment in respect of that? --- Well, in my opinion, for Mr Davis, these occurrences that happened in the workplace were a stressor for him - a psychological stressor. Okay. Sufficient to give him an adjustment disorder at that time? --- Well, from the symptoms that he developed-- Yes? --- it appeared that he had been getting enough symptoms which would qualify as an adjustment disorder with an anxious and depressed mood.". [54] Q-COMP noted that Dr Oelrichs' report did not specifically identify the workplace stressor causative of the Appellant's condition other than to refer to a relationship with a supervisor from whom the Appellant feels a lack of support and a level of lack of understanding of cultural factors. The questions raised for consideration were whether Davis had over-stated his susceptibility to grief, loss, or conflict and whether the main stressors in his life were those related to relationship and domestic factors. Q-COMP submitted that "the circumstances and/or course of employment had nothing to do with the condition diagnosed by Dr Oelrichs and that there existed a multitude of other events in the Appellant's life that were causative of the diagnosed disorder". [55] I am required to determine whether the injury diagnosed by Dr Oelrichs arose out of, or in the course of, Davis's employment if employment was a significant contributing factor to the injury. The tests to be applied in making this determination were enunciated by President Hall of the Industrial Court of Queensland (the Industrial Court) in Avis v WorkCover Queensland (Avis)1 and in Qantas Airways Ltd AND Q-COMP and Michelle Blanch (Blanch). 2 In Avis his Honour said: "I adhere to the view which I expressed in Lackey v WorkCover Queensland (2000) 165 QGIG 22 at 22 (admittedly on another limb of s. 34) that the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship would be necessary if the phrase used were 'caused by'." [56] While in Blanch the President of the Industrial Court stated: "All of that suggests that the appropriate meaning of 'significant' is to be found at the lower end of the spectrum. It is important to bear in mind also that the adjective 'significant' qualifies the expression 'contributing factor'. The notion of 'contribution' in itself requires some linkage between the employment and the injury; compare Favelle Mort Limited v Murray (1975-1976) 133 CLR 580. In those circumstances, it seems to me that it would be wrong to place the meaning of 'significant contributing factor' so far towards the lower end of the spectrum that it carried the meaning of 'more than ephemeral or nominal'. … On the balance, I am not prepared to accept the submission that 'significant' bears the meaning of 'large', 'great', 'weighty' or 'substantial'. I regret that I am unable to be more precise than fixing the meaning of 'significant' as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as 'strong', 'important' or 'of consequence'. However, the task is to apply a statutory test. The task is not to conceptualise an idea.". [57] The medical evidence in the proceedings, including the evidence of Dr Oelrichs and relevant exhibits, establishes that Davis's injury was caused by a mix of work and non work-related stressors. Also, the evidence of Davis and Forster, including Forster's acknowledgement that Davis was subject to stressful situations at work, establish that Davis did experience stress and anxiety as a result of workplace factors including management action or the lack of it, and in the process of supporting patients and their families in particular circumstances. While weight has not been attributed to each of the relevant stressors to enable some ranking of work and non-work stressors, the application of the tests set out in Avis and Blanch to the evidence results in a determination that Davis's injury arose out of, or in the course of, employment in circumstances where employment was a significant contributing factor. 1 Avis v WorkCover Queensland [2000] QIC 67; 165 QGIG 788. 2 Qantas Airways Ltd v Q-COMP AND Michelle Blanch [2009] 191 QGIG 115. -- 10 of 25 -- 11 Management Action [58] The Appellant primarily argues that the injury suffered by Mr Davis did not relate to management action. That is, that the workplace stress that gave rise to the adjustment disorder emanated from aspects of his work and was disconnected from management action; however, the Appellant concedes that Davis was concerned about management action and in particular: (a) Forster's inaction after being told about the stress he felt when attending upon dying patients and his misgivings about her alleged failure to refer him to counselling; (b) Forster's use of inappropriate cultural language on occasion (albeit not directed at him prior to events of January 2011); and (c) Forster's threat that he would not be considered for promotion. [59] Notwithstanding these concessions, the Appellant submitted that save for the failure to refer to counselling, the issues mentioned in paragraphs (b) and (c) above have not been proved to have caused or contributed to the Appellant's psychiatric disorder. Additionally the Appellant submitted that Dr Oelrichs "does not opine that, save for the Appellant's perception of a lack of support and referral to counselling, that other aspects of management action contributed to the disorder". It was further submitted that Dr Oelrichs did not raise in her report any specific reference to the issues concerning inappropriate language or a threat to withhold promotion. [60] However, there is no unanimous view on the Appellant's treatment of, or approach to, the applicability of management action issues and a determination needs to be made about the application of s. 32(5) of the Act to the facts and circumstances of this case. [61] I do not agree with the Appellant's submission that, except for two aspects, Dr Oelrichs' report does not suggest that other aspects of management action contributed to Davis's disorder. A reading of the report reveals that it includes references to grieving and conflict in the workplace; to problems with constipation and anxiety attacks; to Davis being subject to bullying; to his disaffection for his supervisor; to the meetings of 17 and 24 January 2011; to problems at work and to non-work stressors relating to debts; and wanting stability. On my reading of the report; Dr Oelrichs identifies the stressors as follows: Stressors in the workplace • Davis's relationship with his supervisor (Forster); • Davis could not work with a person (Forster) who did not understand his cultural background; • Forster did not talk to Davis about his patients - all she wanted to deal with was "numbers, funding and statistics"; • Davis was not always being debriefed - when he tried to discuss with Forster, he said she did not know how to respond; • attending dying patients; • conflict between families and friends of patients; • no one was listening (presumably an allegation about lack of support from Forster); • a lack of support from his supervisor (Forster); • a lack of understanding of cultural factors by Forster; • Davis was distressed by matters associated with the 17 and 24 January meetings (subject of a formal complaint by Davis against Forster); • Davis was subject to bullying in the form of racially discriminatory language by his supervisor (Forster); and • Davis's difficulty with his supervisor "was going home with him". Other Stressors • various records of TakesCare Psychology dated 27 May 2011 confirm problems at work, noted other stressors relating to debts and wanting stability; • relationship with his partner - "at times things had become pretty serious"; and • problems with constipation and anxiety attacks. [62] When addressing the specific question about the nature and extent of Davis's injuries, Dr Oelrichs at page 12 of her report refers to stressors in the workplace, but in particular to stressors arising from Davis's relationship with Forster who does not provide adequate support and does not have an adequate understanding of cultural factors. [63] Dr Oelrichs' testimony is also relevant. At Transcript 3-47 to 3-51, questions are put to her about the matters of concern to Davis throughout his period of employment. The introductory question was "what was it that he indicated to you was his major concern from the 26th of May 2008?". Dr Oelrichs' answers deal with the following matters: -- 11 of 25 -- 12 • 17 and 24 January meetings (the triggers); • things going on in the workplace, with certain examples cited in the report; • Davis felt that he was always brushed away; • problems developing over time; • Forster's army mentality; • Forster would say things in a way that amounted to "you are ordered to do something"; • Davis was not always debriefed; • grief and loss factor; • Forster did not really know how to respond to him (Davis); • Davis did not feel supported in grief circumstances; • Davis did not feel he was able to relieve the stress (arising from grief and loss); and • Davis felt the difficulties he had with his supervisor were going home with him. [64] The evidence in respect to "problems developing over time" is set out below [Transcript: 3-48]: "Yes. 'Problems developing over time.' What were those problems? --- Well, I then - I suppose that develops further in the paragraph when he explained - well, he attempted to explain how she felt - how he felt her attitude was and-- Yes, okay, well--? --- that's there in the description there about-- Can you tell me where that is, please, in your report? I'm just--? --- That is - sorry, that is on page 3, halfway down the final paragraph or just a bit over, and where Mr Davis reported there had been problems developing over time, he stated he felt it was like she didn't want to work for the service. He described an 'army' mentality and personality and leading - continuing on from there in the report and then in the next paragraph, which is on page 4, he stated in 2009 he'd felt he was not always being debriefed and then that's when he went into details about the grief and loss factor.". [65] The evidence of Dr Oelrichs is sufficient to dispose of the matter; however, other parts of the evidence also point to a conclusion that management action contributed to the development of Davis's injury. Davis's evidence around the point of decompensation suggest that the substantive consideration was his disaffection for Forster and not factors relating to grief and loss or conflict [Transcript: 1-51]: "Why did you take leave without pay, Mr Davis? --- Because nothing was going right and I've been - I was - I was affected. My wellbeing was affected. There wasn't any appropriate investigation that was being implemented regarding the staff complaint. It was more or less that my director, Julie Connell, just wanted me to still work with Carmen Forster and I can build a relationship around that but nothing was resolved, nothing was spoken about. It was - I just couldn't be around that woman any more. What she had done - done to me and yeah, it affected me big time and I just - I went on - I went on leave without pay and - and I didn't want to be around that because every time that I would say that, the director would say, 'Look, you need to be - Carmen is still your director. She's talking like the director, your line manager', and I couldn't be around her. I didn't want her to be line manager and she - the director wanted me to be - be still working as - with a person that spoke to me or discriminated me like that just when there was nothing was resolved.". [66] This conclusion is supported by the evidence of Currie wherein, in response to an invitation to comment on difficulties Davis's was experiencing in the workplace, Currie said on two occasions that he thought that Davis's problems were related to Forster [Transcript: 2-85]: "Do you recall, Mr Currie, whether in your meetings, ad-hoc as they were, with Mr Davis if he ever raised with you any difficulties that he was experiencing in doing the job? --- I think more the difficulties were around the relationship he'd had with his line manager at that time.". And further in the Transcript at 2-86: "Do you recall in your meetings with Mr Davis if he raised any issue with you where he had some difficult - with an issue of conflict? --- I think it was more conflict with his line manager at that time. Are you talking about that conflict or the conflict with patient family--". [67] I also note Davis's evidence at Transcript 1-85 when he was asked when work actually became an issue for him he responded by saying, "when Carmen Forster started". [68] Davis's complaint correspondence dated 16 February 2011[Exhibit 9] also provides an insight into the matters that were of concern to Davis. In this correspondence Davis sets out his concerns arising from his career with the PAH in the capacity of HLO. Unlike his 1 February 2011 written staff complaint, which was primarily -- 12 of 25 -- 13 directed to the events of 17 and 24 January 2011, this correspondence sought to provide a more extensive view of Davis's workplace concerns. Davis sets out a series of issues in the correspondence which are preceded by some general observations including the following: "I have been working with Qld Health for over 3 years, I have really seen a lot of trauma such as watching people die, mourning with family, assisting families and referring them…". … "I work and put over 110% into my work duties and I do it well, I have been frustrated with management who supervise our work area, there is no trust between manager and worker, this is a major issue to myself.". [69] The issues raised in the correspondence include the following: • Davis has been threatened by his supervisor that he will not reach an upper level in his AO status; • conflict with the Social Work department; • Davis has been threatened with a requirement to sign in and out at management offices because management suspected that he was absent without permission on 23 and 24 December 2010; • management speaking with a co-worker about concerns that management have with Davis; • discussions with manager / supervisor which are not in private room; • having to feel belittled when asking to attend conferences; • meeting with Carmen Forster on 24 January 2011; and • Davis expresses the view that Forster "has no intention of listening to our issues". He lists a number of issues including: "she doesn't think aboriginal issues are important"; she doesn't understand how accountable HLO's are to the ATSI community; flexibility such as needing the time to recuperate when patients pass away; attending to people we have to settle down in regards to waiting at hospital for long periods of time (anger and frustration); last minute requests from ATSI patients and family for accommodation. It is clear that the majority of complaints articulated by Davis in his correspondence relate to the exercise by Forster of her supervisory and management responsibilities. [70] I accept that the evidence supports a conclusion that Davis's injury was caused by a mix of factors. In terms of work-related stressors, the evidence establishes that that matters relating to Forster's management and supervision of Davis were significant factors if not the major factors in the development of his injury and that these factors were invariably linked in some way or other with other factors which were claimed to have caused or contributed to the injury. [71] In Bowers v WorkCover3 President Hall of the Industrial Court held that there was nothing in the then equivalent section to s. 32(5) of the Act (s. 34(5) of the WorkCover Queensland Act 1996), and there was nothing in the extrinsic materials to indicate that s. 32(5)(a) of the Act was confined to the impact of disciplinary action. The President of the Industrial Court then stated: "Neither, given the use of the word 'against' at paragraph (b), can there be any reason for limiting paragraph (a) to action taken against the worker, e.g. a transfer for other than disciplinary reasons. Neither am I able to accept the submission for the appellant that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable. The circumstance that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry.". [72] In Q-COMP v Education Queensland4 President Hall of the Industrial Court accepted a submission of the Respondent that "having made a finding of fact that the investigative process was a significant contributor to the psychiatric disorder, though of lesser significance than other significant contributors, the causal test posited by 'arising out of' was met". [73] In RACQ Operations v Q-COMP5 President Hall of the Industrial Court held that the test of "arising out of" still requires a minimal causal nexus and a psychological injury does not arise out of management action if the action is too remote from the injury. 3 Bowers v WorkCover Queensland [2002] 170 QGIG 1. 4 Q-COMP v Education Queensland [2005] QIC 46. 5 RACQ Operations Pty Ltd v Q-COMP [2003] QIC 162. -- 13 of 25 -- 14 [74] In Q-COMP v Hohn6 President Hall of the Industrial Court held that "the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an 'injury'" and that "reasonable management action reasonably taken, which precedes and is discrete from the worker's decompensation may well be found not to be reasonable management action which triggers the operation of s. 32(5)". The President of the Industrial Court also held that: "It is clear on the proper construction that s. 32(5) does not preclude characterisation of a psychiatric or psychological disorder as an injury for the purpose of the Act, only where reasonable management is a significant contributor to the aetiology of the disorder. Had the legislature intended to impose such a requirement, s. 32(5) might readily have been case in the same language as s. 32(1) to (3).". [75] Applying the reasoning in these decisions to the facts of the current appeal, I conclude that the extent and nature of relevant management action in this case warrants a finding that management action was a significant contributor to the psychological injury sustained by the Appellant. Therefore, in order for the Appellant to succeed, it will be necessary to sustain an argument that the injury found to exist in accordance with s. 32(1) of the Act should not be removed from s. 32(1) by the operation of s. 32(5) of the Act. Stressor 1 [76] This stressor was described by the Appellant as "the stress which accompanied the situations of conflict which arose in the PAH role". [77] The starting point for an evaluation of this stressor is a consideration of the nature and extent of conflict actually occurring in the workplace, including a consideration of the evidence dealing with incident reporting. The evidence about conflict in the workplace was not extensive. While it was not in dispute that incidents did occur from time to time, the evidence relating to the frequency of incidents and the degree of seriousness of incidents was relatively limited. [78] Davis provided an example of two brothers who got out of control in the ICU waiting room because they were not allowed in to the ICU. The brothers, who were intoxicated, starting fighting amongst themselves and were using bad language. According to Davis at Transcript 1-30: "…and they then would start punching on, physically hitting each other and hurting - just chucking each other all over the room, smashing photo frames up and - I then came into the room and I had to break - had to jump in the middle of it and push them both aside, and another ICU doctor came in and helped me out. And I was getting punched on the side too, as well, while I was breaking them up, and when the other doctor came in it was all - it calmed straight down, so I then took one of the brothers downstairs…". [79] Davis did not file a written incident report in respect to this incident but said that he informed Forster orally. No other evidence, including documentary evidence, was given in the proceedings in relation to this incident. Neither Forster nor Julie Connell were aware of the incident. Forster's evidence at Transcript 4-4 was as follows: "Were you aware ever whether - from what Mr Davis may have told you - that he might have been witness to any altercation? --- Well, in a round-about fashion, he may have indicated that families can get out of hand and everything. But he never actually provided me any incidences.". [80] Davis said that conflict at some level or another was a very regular occurrence: "Mr Davis, now, that's an extreme example, I appreciate. How often might you be involved in some level of conflict, either at verbal on the one end or physical on the other? How frequently do you recall that happened whilst you were in the role? --- I haven't got a number on it. It's quite a few times, quite a few times. Well, perhaps we could tackle it this way: In terms of a time period, was it daily, or weekly, or monthly? --- It would be almost on a daily basis.". [81] Forster said that Davis had told her that he encountered stressful situations, but she also said that significant conflict happened once or twice and that "it's not something that happened all the time. It'd be, you know, once in a blue moon". [Transcript: 4-50]. [82] Julie Connell's evidence was to the effect that in the event of conflict the immediate response is to call Security. She said that during the course of Davis's employment she did not recall either discussing incidents or reviewing written incident reports involving Davis [Transcript: 3-86]. 6 Q-COMP v Hohn [2008] 187 QGIG 139. -- 14 of 25 -- 15 [83] Gary Cowburn (Cowburn) said that during the course of his employment (about 15 months at the time he gave evidence) he encountered physical attacks "may be twice or three times". He said that he saw verbal abuse quite regularly. He indicated that he had never been physically struck [Transcript: 3-6]. [84] Ashley Currie (Currie) said that he was aware that conflict situations arose within the HLO role, but he was unable to give anything other than vague evidence about whether he recalled Davis telling him about events involving conflict: "Do you remember if he raised that? --- I think it might have been in regards to one mental health patient that - then there was one female lady that was placed in the hospital, I'm - it's so long ago and we do have-- I appreciate that? --- quite a lot of patients to go through, and I think the incident was - is that the male partner had tried to gain access to see the female but Cleavon and them had sort of mentioned to him why he couldn't go in and see the individual - couldn't see the partner. I think that may be the one we're referring to.". [Transcript: 2-86] [85] In terms of incident reporting, the evidence supported a conclusion that other than for serious incidents it was at the discretion of the individual employee whether or not a particular incident would be reduced to writing in the form of a PAH Incident Report. Davis's practice was not consistent with this position in that, while he acknowledged that serious incidents should result in the completion of an incident report, he maintained that he never completed written reports and his practice was limited to informing Forster orally of incidents [Transcript 2-2 and 2-3 refers]. This aspect was not in contention as both Forster and Julie Connell (Connell) said in their evidence that they did not recall viewing incident reports prepared by Davis. [86] Forster's evidence around incident reporting differed from the account provided by Davis. While Davis said or implied that he reported incidents directly to Forster in a timely fashion, Forster said that her knowledge of incidents involving Davis was acquired after the event and indirectly. Forster said that she became aware of some incidents in meetings with the HLOs when the HLOs might refer to some particular event, but not in a context where she was being given formal notification accompanied by a request for particular support or action. She also suggested that if the incidents occurred in the wards then it was probable that the nursing staff would have handled the issue. [87] Davis's practice was at odds with the evidence of both Currie and Cowburn. Cowburn's evidence was to the effect that he was aware of the requirement to complete incident reports although "sometimes it slips your mind to do a full incident report after the event". Currie was less equivocal in stating that in his view "if they're caught up in conflict and it seems like quite a serious matter, you would have to go and fill out an incident report". Currie also added that it was the "golden rule" that "you need to pop that in the progress notes anyway, regardless". [88] Connell's expectation was that significant events should result in the completion of a written incident report. She would expect to be informed of significant events either via oral reporting or her routine review of written incident reports [Transcript: 3-86]. [89] The Appellant submitted that within the HLO role it was not uncommon for conflict and arguments to arise within indigenous family units, or between family members or patients and, on occasion, between patients and family members and hospital staff and that the HLOs could become involved in mediating in such events. While the evidence supports this broad conclusion painted by the Appellant in final submissions, the evidence does not take the matter much further and there is limited evidence of significant conflict in the workplace. This conclusion is supported both by the evidence relating to instances of conflict and also the absence of incident reports or other documentary forms of evidence which would support the allegation that Davis was regularly confronted with significant or serious instances of conflict. [90] Davis's evidence relating to how conflict at work caused his illness was circumspect. When asked to describe the impact of conflict, Davis explained the negative impact of a particular incident as amounting to embarrassment arising from the fact that other indigenous persons could conduct themselves in such a way. There was also only limited evidence supporting a conclusion that conflict in the workplace impacted negatively on Davis's health. [91] The consultation notes prepared by Dr Mary Woodward [Exhibit 14] include the following: "exposed to a [sic] an enormous laod [sic] of PT stories, difficult likfe [sic] situation, trying to set up accomod [sic] for families constantly exposed to SEWB/conflict in families and PTS". These notes were taken following Davis's attendance on Dr Woodward on 11 February 2011. Prior to this date and on 22 April 2009 [Exhibit 5], Davis was given a referral to counselling by Dr Nuske which includes a reference that Davis "confronts stressful situations at work" but also draws attention to marriage problems and suicidal thoughts. -- 15 of 25 -- 16 [92] The evidence in the proceedings does not sustain a conclusion that Davis was consistently exposed to significant conflict. The Appellant relied on the report and evidence of Dr Oelrichs, but there is little in the report which deals with conflict at work. A reference at page 4 of the report alluded to Davis having "difficulties with patients" while another section refers to a stressful situation "where a family where a girl died had quarrelled over whether to (bury or cremate) the girl. He stated that he had to intervene in front of the girl and the family, and he found this extremely distressing". In the context of the report, it is more likely that this latter reference has more to do with the 'grief and loss' factor than the 'conflict' factor. [93] While his evidence is vague around timing, Davis said that following the incident involving the two brothers he sought access to counselling and went to see his General Practitioner, Dr Krishnamoorthy, for this purpose [Transcript: 1-70]. In this regard, the medical records show that Davis visited Dr Krishnamoorthy on 17 July 2009 and 2 June 2010 but, according to the consultation notes, neither visit related to conflict in the workplace or workplace stress. The notes of the subsequent visits on 11 June and 16 June 2010 do refer to depression, but do not state the source of depression. These visits, however, coincide with Davis's admission to PAH following his suicide attempt on 5 June 2010. The evidence does not in any definitive way support a conclusion that Davis sought medical assistance or counselling after the incident involving the two brothers. Stressor 2 [94] This stressor was described by the Appellant as "the requirement to sit with indigenous patients and to mourn with families after the passing of patients at the PAH". [95] In respect to this stressor, the Appellant asserted that: • the HLO role could engender close relationships with those persons and families receiving assistance and that rapport and trust were significant aspects of the role; • there were not always good outcomes and patients occasionally would die. Part of the Appellant's role was that he would mourn with the families and he identified with their loss; and • the practice of the Appellant to play an active role in the passing of indigenous patients and the mourning process was known to the Respondent. [96] The Appellant submitted that there is ample evidence to allow the conclusion that the requirement to attend indigenous patients at the moment of their passing and, thereafter, to deal with grieving families was a stressful part of the HLO role for the Appellant. [97] Davis said that when he came into the role he did not receive training in how to deal with grief. He said that he found it stressful to be involved with people dying in front of him. His evidence was that this would happen reasonably frequently and he recalled one period of approximately six months where he endured five deaths. He explained that, on occasions, he would be requested by the patient to be there at the end and on other occasions he would attend at the request of the family. He would find the process emotionally difficult and said that "the rapport that I had built with these people, it felt like they were my own family member that passed away". [98] Davis acknowledged that his job description included an expectation that the HLO role involved supporting patients and their families and friends during a time of deteriorating health which might end in death and included attending patients when they are dying. The main issue in contention for him was that his employer did not sufficiently support him in the undertaking of these functions. The Transcript at 2-33 refers: "…It's a hospital. People die in hospitals, don't they; sometimes they get better too, we hope? --- That's right. All right. But at the same time - so you knew that that was actually in your job? --- Well, my - my job had to take away those social issues that gave them anxiety so they could focus on healing. Indeed. Indeed. And you knew as part of the Aboriginal culture the importance of attendance upon individuals when they're dying and when they're sick, particularly being an Aboriginal man? --- That's right. It was important that you were there with them to be able to provide comfort and support from time to time? --- Definitely, that was my job. Yes, yes, part of your job because the position description sets out exactly essentially what your job really was. Okay. And it wasn't just the only requirement of the position, but it was one of many requirements of your position, wasn't it, as to identify--? ---- One of many, yeah.". [99] Davis said that he raised his predicament with Forster in late 2009. Davis's evidence is recorded in the Transcript at 1-32: -- 16 of 25 -- 17 "I've told her that all these - all these issues around the hospital - going through what we just spoke about was violence, the threats, verbal arguments, just watching people pass away in front of me on their request was what - was what I explained to her what was going on.". [100] Davis also said that he had another discussion with Forster after his suicide attempts. Davis said that he told her about the stress that he was experiencing and said that the stress was caused by grief and loss issues and because he missed his children. Davis described Forster's response as follows [Transcript: 1-37]: "…she wasn't even empathetic towards what I was going through. She wasn't - she didn't even come across of wanting to assist me, it was just very stubborn, arrogant way of how she came across and it wasn't very supportive at all. I never had the support from her, she never gave me access to any support of what I should have. I even asked her for leave during that time and she never gave me leave.". [101] Forster's evidence about the post-suicide discussion is recorded in the Transcript at 4-52. Forster said that Davis informed her that he had been stressed by reason of relationship difficulties and that he was missing his children. She denied that Davis had raised workload or workplace stressors during this meeting including a difficulty in dealing with death and conflict situations. She also denied that Davis had attributed his domestic or relationship difficulties to workplace stressors. She said the focus of Davis's concerns was on his family. [102] Davis also gave evidence to the effect that when he told Forster that he was having difficulty coping and asked Forster for assistance, she did not refer him to a health service nor to a counselling service. The Transcript at 1-33 records Davis giving the following evidence: "I told her about what I was going through during that time, and I couldn't - she didn't come across like I said. She wasn't empathetic about anything and she wasn't helping me and she never guided me in any direction that would assist me to get some help, so I took it because of that stress.". [103] Davis denied that Forster had tried to assist him and had discussed possible solutions with him, including access to Employee Assistance Service (EAS) counselling. Davis also denied that Forster had asked him to consider his suitability for the role. Davis, in effect, asserted that Forster completely ignored his cries for help. These assertions give rise to a significant conflict in the evidence. [104] Forster's evidence contradicted Davis's account. She said that in her discussions with Davis on the subject of his difficulty in coping with grief and loss that she had proposed a number of solutions or options. She said that she had discussed with Davis his suitability for the role; recommended that he enrol in stress management courses conducted by PAH's Learning and Development Unit; advised him to access counselling through the PAH EAS; and subsequently discussed the matter with the indigenous co-ordinator, John Corowa. [105] Forster did not dispute that Davis had raised with her his concerns about participating in the grieving and his difficulty in coping with aspects of his role. For the most part, she said that her discussions with Davis about these matters took place in the early part of Davis's employment, although she did concede that Davis also discussed these issues with her late in 2009 [Transcript: 4-43]. Forster also said that these issues arose "reasonably frequently" and that "over the time there was a lot of, you know, issues with death and grieving". [Transcript: 3-102]. This evidence is sufficient to support a finding that over the course of his employment Davis found aspects of his work stressful and that he discussed these aspects with Forster from time to time. [106] In his evidence, Cowburn confirmed that he was required to sit with patients and their family as a patient passed away. Cowburn said that initially at those times he felt that he was "under a lot of pressure" and that he "wasn't able to complete that alone" [Transcript: 3-5]. After the early experiences Cowburn said that while he still found the process difficult that he was "able to cope a lot better than the first". While he accepted that encountering death was part of a hospital job, it was harder for HLOs to be clinical because of their involvement with the family and the building of rapport with family members. [107] Currie's evidence was to the effect that he knew that Davis "was stressing a lot" and that he had mentioned to Davis on a few occasions that if "things were getting difficult" that Davis could be referred to a service that is available to staff members. The Transcript at 2-112 refers: "All right. Did on any occasion Cleavon ever discuss problems that he was having with - not so much advocating but consulting patients and families in stressful situations such as this with them dying? ---- At different times. Sort of, I - I knew Cleavon was stressing a lot and Cleavon being an Aboriginal man sometimes just not advisable to have a direct approach to him and say: Listen mate, you need to go and seek this; that's something that in - in different areas may see as a bit of a sign of weakness-- -- 17 of 25 -- 18 Right? ---- but knowing that Cleavon needed support I've mentioned a few times said: Look, you know, like if things are getting difficult there are things that may be we can refer people to-- Yes? ---- but it's also available for staff members; so in a roundabout way you need to plant seeds in-- Right? ---- yeah.". [108] Despite Davis's claim that his requests for support were rejected by Forster, at no stage during his employment did he complain to Connell. In this regard, while Davis said that it was not easy to get a meeting with Connell, he accepted that he could make contact with her via email. Connell was aware that part of the HLO role involved sitting with families and patients when they passed away and she agreed that such work "can be distressing to anybody" [Transcript: 3-83]. But Connell observed that this experience was shared by many clinicians and that it "goes with the territory of working in a hospital that does the casework that Princess Alexandra does". Connell also said that "we have a lot of people from different cultures around the world at PA now so, you know, we have to deal with lots of different cultural aspects of death and dying for many different cultures so it's what we do and, yes, the HLOs often are involved in that but, as I say, as are many other clinicians who deal with long-term patients with chronic illness over a period of years". [109] Davis was assisted in the discharge of the cultural aspects of his duties by the indigenous co-ordinator, John Corowa. Corowa convened network meetings for particular indigenous staff members, including Davis. Davis said that at these meetings he "would talk about the issues that were affecting me at the hospital at the time" [Transcript 1-21]. From Forster's perspective, this was the appropriate course and it was her evidence that it was Corowa's responsibility to address the difficulties that the HLOs may be having with grief and loss. Forster said that she had discussed the matter with Corowa [Transcript: 3-102]: "Did you suggest that to them? ---- I did, and I also spent an hour on one occasion talking to John Corowa, who was his professional head and he had two bi-monthly meetings with all the indigenous staff in the southern area and I was telling him that my guys were having problems coping with stress and we also had big issues about other hospitals complaining that my guys weren't doing their job and not answering their phones, and I wasn't really sure what was happening but I did sort of, you know, stick up for them and say, 'look, you know, we're very busy and we have more deaths and'- but then when I sat with John for an hour, I said, 'you need to do something about stress counselling and, you know, help these guys out,' so---". [110] It was Forster's evidence that when she took the matter up with Corowa she did not think that Corowa had done much about the issue. She said that she followed the matter up with him but that Corowa did not have much to say. Forster said, however, that she was not aware whether the issues had been discussed at the bi-monthly indigenous network meetings [Transcript: 4-43 refers]. [111] Davis's said that Corowa did not give him feedback as to how to cope with people dying in hospital nor did he give him any feedback about how he should approach his involvement with families of people who were critically ill [Transcript: 2-38]. Despite the denial of assistance from Corowa, Davis agreed that he got along well with Corowa and that Corowa wasn't a difficult person to approach. Davis also agreed that he had the opportunity to talk to Corowa about any concerns that he had related to grief and loss [Transcript: 1-94 and 2-37]. [112] Davis said that he discussed the difficult aspects of his work, including his concerns about Forster, with Corowa; however, he did not make clear why these discussions were unproductive other than to suggest that Corowa should have made a formal record of the discussion. In this regard it is open to speculation that Davis was disappointed that Corowa did not appear to communicate his complaints to Connell or others in management [Transcript: 2-37 to 38]: "Right. Did you ever speak to John about watching patients die? --- Yeah, I have. You have. And what happened? --- Nothing. What do you mean nothing happened? --- I wasn't - it wasn't formally - a formal process, it was - I tried telling them about - the fact about the issues about the violent - the physical violence that happened. I told him about, you know, all these deaths that are occurring in the hospital and we had so many within so many months and I told him about Carmen as well Okay. So all of this you - all of this information you conveyed to John? --- Yeah. Okay. And was there any positive response from him? --- Well, there was no note taken. What do you mean, no note taken? --- Well, he should have been writing it down after thinking about it. -- 18 of 25 -- 19 What do you mean, he should have been, how about you? --- Well, he was co-ordinator for the Metro South - indigenous co-ordinator, so he had a title that represented us.". [113] Q-COMP took the view that the Appellant should have called Corowa to give evidence and submitted that the failure to do so gave rise to a Jones v Dunkel7 submission. In this regard, Q-COMP argued that no legitimate explanation had been given for the absence of Corowa who would have been, if called, a material witness. In the circumstances Q-COMP invited the Commission to draw an inference that the Appellant did not call Corowa because it knew that Corowa's evidence would not assist its case. [114] I decline to draw the inference sought. While I accept that Corowa may have been a material witness in these proceedings and would have assisted the Commission in its deliberations, I am unable to form a concluded view about the extent to which Corowa's evidence, if given, would not have assisted the Appellant's case. Additionally, the Jones v Dunkel rule is more typically invoked in relation to the unexplained failure of a party to call a witness who is in that party's 'camp'. While Corowa was Davis's indigenous co-ordinator, he was also aligned in terms of the organisation chart to supervisory or middle management roles, and it does not necessarily follow that Corowa should be placed in Davis's 'camp'. [115] While Davis had regular contact with Corowa, his contact with Currie was irregular and intermittent, partly because Corowa was his indigenous co-ordinator for most of his period of employment with PAH, and partly because Currie was based at Logan which was some distance away from the PAH. Currie's evidence was to the effect that he could recall one conversation that he had with Davis in late 2009. This was the extent of Currie's knowledge of Davis's complaining about the grief and loss aspects of his role. His evidence in the Transcript at 2-113 is as follows: "Please? --- he sort of says, 'Oh, Buzz, it's a bit difficult working under Carmen, it's like' - and I said, 'Oh, okay mate', I said, 'What's kind of going on?', he says, 'I feel like I'm being watched all the time', and I said, 'Okay, but that's all of us', and I tried to sort of look at both pages on why we're being watched and why we need to be accountable and these sort of different things, but he sort of said, 'Like, you know, I really don't think she gets it', and I - you know, and if any of our mob say that, if they say, 'Oh, look I really don't think they get it', is that 'I really don't think they get it', is is they don't understand-- It being - it being--? ---- it would be probably our way of doing things.". [116] While Currie's statement lends support for the proposition that Davis complained to Currie about Forster's supervisory style and cultural indifference, it does not support the proposition that Davis complained to Currie about the difficulty he was experiencing with grief and loss factors. Section 32(5) - Reasonable Management Action Taken in a Reasonable Way? [117] The starting point is to ask what would constitute reasonable management action in circumstances where it is accepted that Davis did find some aspects of his work stressful and did raise his concerns about these aspects with his supervisor. Not all aspects of his work were stressful. Disputes between families and friends of patients occasionally gave rise to significant conflict situations while attendance with dying patients and supporting families in mourning were encountered from time to time. The latter events were not unexpected given the nature of the PAH case load, although attention was drawn to the frequency of such events which Davis said, in respect to one period of time, involved five deaths in six months. [118] The exposure to stressors is considered in a practical context wherein Davis was not on call. He worked around eight hours per day, Monday through to Friday. If conflict or death occurred outside these hours, other hospital staff were assigned responsibility. The practice was that social workers employed by the hospital would attend to these matters when required on week-ends and other times when HLOs were not on duty. Apart from one reference in the evidence where Davis said he stayed back to around 6:00 pm, there is no evidence suggesting that Davis, despite relationships formed with patients, would be recalled to attend to their needs or to support families at the time of a patients passing. There was no evidence to the effect that the bonds developed between HLO and dying patient were of such a strong and enduring character that the HLO would remain on call to return to the hospital to attend the passing. [119] In terms of the relevance of management action to Stressor 1, I accept that Davis's criticism of Forster for failing to provide adequate support arising from stressful situations at work does include references to difficulties that he might have experienced with families and friends of patients; however, I am unable to conclude that the evidence supports a finding of unreasonable management action taken unreasonably. 7 Jones v Dunkel (1959) 101 CLR 298. -- 19 of 25 -- 20 [120] In this regard, there is no evidence or submission particularising Davis's complaint of no support and articulating the remedy that should have been put in place. The procedure put in place by management was that in the event of any difficulty the HLO should contact Security. Also, the evidence was to the effect that the HLO will, in the event of conflict situations, be able to rely on the support of other hospital staff whether nurses, doctors or other hospital staff on duty. There is no evidence to suggest that when the HLO contacted Security that their response was tardy or deficient in any way. Any management failure in terms of the response to conflict situations bearing on HLOs would ordinarily be determined following an assessment of incident reports, employee interviews and related information. There is no evidence before the Commission that would enable a finding to be made that procedures that management had put in place to deal with incidents, or the nature or extent of the organisational response to conflict situations, were inadequate or deficient and therefore gave rise to unreasonable management action taken unreasonably. [121] In respect to Stressor 2, the evaluation of the management response to Davis's concerns arising from his participation in grief and loss extends to a consideration of action taken or not taken by Forster, Connell and Corowa. Forster's evidence was to the effect that she had discussed a number of potential solutions with Davis when he raised his concerns. Forster's evidence at Transcript 3-102 refers: "Did Mr Davis ever come to you and tell you - confer with you about these particular events? --- Yeah, on our first few meetings he complained that he wasn't, you know, coping with patients dying and didn't like it so some of the things that I said to him at that time was, 'You should go and see the staff counsellor, maybe they can give you some techniques to help you get through it,' and then I suggested that maybe, you know, the role that he was in wasn't right for him and he just went, 'Oh, no, that's okay,' and he backed off and suddenly he liked his job again and I thought, well, that was a bit strange. And I think over the time there was a lot of, you know, issues with death and grieving and they wanted to, you know - Tanya and Cleavon at one stage said they wanted to sit on the grass out the front of the hospital and try and debrief each other and I just said, 'You've got to go and see the staff counsellor,' and I said, 'If you don't visit them, how's anybody going to help you? They might have some really good techniques that can help,' and they were going, 'Oh, I don't think so.' And I said, 'There's courses in the hospital on how to manage stress, just apply for those and I'll approve it straight away,' and then I went on and on about, 'If you don't see the staff counsellor, how's anyone going to help you? This is an accredited hospital. If we get it wrong, then they'll try and fix it, maybe they can have an indigenous counsellor that comes out especially for you, once a, you know, week or a fortnight or something, that would help them'.". [122] In this evidence, Forster puts forward the following propositions which are relevant to the determination that needs to be made about reasonable management action: • she offered to arrange counselling for Davis and suggested that the counsellor may be able to provide techniques to help him cope; • she recommended that Davis enrol in a hospital course dealing with how to manage stress and indicated that she would immediately approve his enrolment; • she discussed with Davis whether he was suitable for the job, given it was a requirement of the job to attend seriously ill and dying patients. [123] In her evidence, Forster reflected on how things may have been done better in terms of the PAH approach to the more difficult components of the HLO role [Transcript: 4-20]. In this evidence, Forster raised some additional options for consideration, including job redesign, pre-employment skills matching and customised training and counselling. Noting these suggestions for improvement, I consider that reasonable management action in response to the particular issues raised by Davis would extend to a consideration of the following options: (a) Encourage Davis to access counselling through the PAH employee assistance service; (b) Recommend that Davis should enrol in courses conducted by the Learning and Development Unit dealing with stress management; (c) Discuss the matters with Corowa; (d) Explore with Davis whether he was suitable for the job and to consider redeployment; (e) Introduce a prohibition on, or restrict the incidence of, the attendance on dying patients; (f) Job redesign; (g) Pre-employment skill matching; and (h) Customised training and counselling. [124] Some of these avenues or options arise from a theoretical consideration of the issues at hand. The Appellant did not propose in any specific terms what it was that Davis considered management should do in response to his complaints. Nor were all of the options listed above put to Forster or Connell for consideration during cross- examination. For his part, Davis mainly relied on statements to the effect that Forster did not care, did not take his concerns seriously or did not provide empathy or support. Davis did not articulate in specific terms what he expected Forster to do, or what he asked her to do. Similarly, while Davis criticised Corowa for failing to -- 20 of 25 -- 21 provide support, he did not indicate what it was that he expected from Corowa other than that Corowa should have reduced his concerns or complaints to writing. [125] There is no evidence that management gave consideration to the options (e), (f), (g) and (h) above, but I do not consider that this gives rise to a finding of unreasonable management action unreasonably taken. Management decisions in these areas would invariably take into account experiences derived from the operation of the HLO role since its inception (about 10 years prior to Davis's engagement), including the views of other HLOs and the indigenous co-ordinators, but insufficient evidence about the historical aspects of the role and the views of relevant persons both past and present were provided in the evidence. I agree that concepts such as job redesign and pre-employment skill matching are proposals worthy of exploration over time but they do not, in the circumstances of this case, amount to significant management oversight or error in the formulation of the response to be provided to Davis. [126] In terms of skills matching and customised counselling, it is relevant that Davis appeared qualified for the job on appointment and he improved his qualifications in the course of his employment when he obtained a Diploma in Counselling with an indigenous focus. Also, while on leave from the PAH in 2011, Davis undertook work as a counsellor with the ATSI Community Health Service where he assisted clients deal with grief and trauma. There is no basis upon which I could conclude that Davis should never have been appointed to the HLO role, or only appointed after further training. Nor has any claim of this nature been made by the Appellant. [127] It may be that more could have been done by the PAH to examine measures that might reduce the exposure of HLOs to grief and loss events, but I acknowledge that the most likely source of advice or recommendations would have been the hospital counsellors which Davis declined to access. There was some mention in the evidence about flexible working hours in a context where Davis might have been able to take time off work after particularly stressful events, but the evidence does not support a conclusion that Davis specifically asked for time off and a request was rejected. In more general terms, Forster's evidence was to the effect that she allowed Davis significant latitude in his working hours, particularly after his suicide attempts and related to his desire to improve his relationship and family arrangements. [128] In my view, the determination about management action is most appropriately decided by resolving whether Davis was offered counselling when he informed Forster that he was having trouble coping, and whether Corowa was negligent in his handling of Davis's complaints or concerns. A related consideration is whether an offer of counselling was ever going to be a viable option given Davis's prejudice against the EAS counsellors and given that he was already undergoing counselling as a result of referrals from doctors working within the ATSI Community Health Service. In this regard, it was Forster's evidence that when she offered to arrange counselling for Davis he told her that he was already receiving counselling, and, in any event, Davis did not want to see the EAS counsellors [Transcript: 4-44 and 4-55]: "Can I suggest to you, Ms Forster, that, in fact, when you were told about what Cleavon had been through you didn't offer him as much - offer him to take some time to have some counselling away from work?-- He told me he was already getting counselling and I said, "What else can I do for you and if you need - tell me when you need to see the counsellor again and we'll make arrangements" and I don't know what else I could have done because he didn't want to see our counsellors so I just went along with whatever he wanted to do.". … "Could you be mistaken about that recollection? --- No, I would have - I always suggested that and - and he always said, 'I don't want to go to those people, those people, they don't understand me, they can't help.' What did you understand him to mean by that? --- Well, I just felt that he didn't want to give the EAS service an opportunity to do anything for him and that only his own people could help him which is why I used to John Corowa and say, you know, what's going on.". [129] While Davis denied [Transcript: 1-96 and 2-35 to 36] that Forster had ever encouraged or suggested that he assess the service, the evidence established that Davis had little interest in accessing the EAS service and that he was already accessing counselling through another source. This evidence suggests that it was never likely that Davis would have responded positively to any offer from Forster to arrange counselling with the EAS and that, in any event, such an offer would have been redundant because Davis was already accessing an external counselling service. [130] At some point after February 2011, and when he was in other employment, Davis had visited a TakeCare psychologist but complained that he could only get limited assistance from the psychologist because she was non-indigenous. Davis said that "she had a few therapeutical strategies that could have helped me. But it's just a concern when you don't have the same person or the same culture that can understand your cultural values" [Transcript: 1-60]. -- 21 of 25 -- 22 [131] At Transcript 1-91, Davis confirmed that he was aware that Queensland Health offered counselling services. His initial evidence was that he never sought to access this service but he subsequently indicated that he did use the EAS on one occasion in January 2011 after the 17 and 24 January events [Transcript: 2-10]. Davis denigrated the capacity of the EAS counsellor to assist him saying that "he wasn't understanding of where I was coming from" and that "he basically thought he knew everything" [Transcript: 2-36]. [132] Davis confirmed that he had, of his own initiative, sought a referral to counselling from his general practitioner [Transcript: 1-103]. He said that he did not contact the EAS prior to January 2011 because he was "going to the Aboriginal Community Health Service which I thought were more appropriate" [Transcript: 2-73]. [133] Currie's evidence supports a view that the appropriate management response to Davis's complaints was to arrange for access to a counselling service [Transcript: 2-111]: "All right. Now, the other - I just wanted to ask you about was, when an individual - a HLO is involved in situations with families, and patients die, ordinarily, is it appropriate for them to access EAS? --- Yes. I've got a - can I use an example? Yes, please? --- Is it okay? I have staff members in Logan who have accessed the EAS. It could be the individual there, but they find her very good at her job. But again, I can't speak for all areas, if it's a different person at the PA.". [134] Currie also acknowledged that HLOs may have a preference to use a service other than the EAS but in these circumstances access to counselling could be arranged through an appropriate Aboriginal organisation. In this respect, Currie's advice coincides with the practice adopted by Davis in accessing counselling though the ATSI Community Health Service. Currie's evidence is recorded in the Transcript at 2-86: "All right. Leaving aside conflict, have you ever received feedback from health liaison officers that they simply find it difficult when patients pass away in terms of grief or loss or helping families deal with that? --- Yes. And on those occasions what, if anything, have you done to assist them? --- Okay. Well, we do have an employee assistance service, but also as that I'd advise individuals - I'd say, "Look, if you feel that the assistance service isn't for you, there are other avenues to go down to gain support to either debrief" - there are quite a few Aboriginal organisations around. In Logan they do have some community groups but over here it's usually Gallang Place, and that sort of can have counselling sessions with individuals. Mr Currie, why might an indigenous worker feel that the AS was not for them? --- If they haven't either had an established relationship they may not feel that it's appropriate for either the individual.". [135] Cowburn's evidence was broadly consistent with Currie's in that he said that he had been offered counselling to deal with grief and loss and that he was aware that there were counsellors in the hospital [Transcript: 3-6], but that he had not tried to access the EAS [Transcript: 1-14]. [136] I have decided to resolve the conflict in the evidence given by Forster and Davis about access to counselling by preferring Forster's evidence and entering a finding to the effect that when Davis raised the difficulty he was experiencing with grief and loss, Forster did offer to arrange counselling with the hospital EAS service. I prefer Forster's evidence for the following reasons: • findings of credit adverse to Davis have been entered arising from his evidence in relation to his admission to the PAH Mental Health Unit in June 2010; • the evidence overall does not point to a general impression that Forster approached her supervisory responsibilities in a capricious or negligent manner which might lead her to completely ignore Davis's complaints; • if Forster had completely rejected Davis in the manner described by Davis in his evidence, it would have been probable that Davis would have complained to Connell, Corowa and, possibly, Currie. There is no evidence of any such complaint being made; • it was unlikely that Davis ever had an interest in Forster referring him to EAS counsellors and it was likely that he would have ignored or attached little value to an offer from Forster to arrange access to EAS counselling. The probability around this outcome is increased by the fact that Davis had well established avenues of access to counselling via the aboriginal health service and had been regularly accessing counselling across 2009 and 2010; and • Forster's evidence was consistent with Currie's evidence in terms of what would be an appropriate response to Davis's predicament. [137] Additionally, I consider that Davis's evidence around counselling lacked conviction for the following reasons: -- 22 of 25 -- 23 • despite his criticisms of the EAS, Davis had not tried to access the service prior to January 2011 and, to that extent, he was not qualified to evaluate the service; • if anyone was uniquely placed to communicate effectively with a non-indigenous counsellor it would be Davis because his core role required him to bridge the gap between indigenous and non-indigenous cultures in a clinical or hospital setting; and • at some point during his employment, Davis obtained a Diploma in Counselling which should have assisted him in dealing with his stressors or in communicating effectively with EAS counsellors. [138] In terms of the management action bearing on Corowa, I accept that both Davis and Forster expressed negative sentiments or doubt about the extent to which Corowa had applied himself to the resolution of Davis's problems; however, Forster was not privy to the discussions entered into between Davis and Corowa and she could not give conclusive evidence about the matter. Davis was clear in his evidence that while he did discuss all the matters of concern to him with Corowa, it was his view that Corowa did nothing to help him, just as he maintained that Forster did nothing to help him. [139] I do not intend to make a finding adverse to Corowa in circumstances where Corowa was not called to give evidence and Corowa was not given the opportunity to respond to the criticisms levelled against him. The available evidence does suggest that Corowa was unable to assist Davis, but I do not know the reasons for this outcome. Corowa's disinclination to provide the support sought might be premised on any one or more of a number of possible explanations or views including, for example, that he considered that Davis's propositions or requests or demands lacked merit. [140] I am unable to conclude on the evidence that Corowa was negligent or careless in his treatment of Davis. Given that both Forster and Currie had suggested to Davis that he access counselling, it was probable that Corowa would have issued similar advice. It would be no surprise, therefore, if Davis was as unenthusiastic with Corowa's response as he was with Forster's response. My conclusion may have been different if Corowa had refused to talk to Davis, had ignored him, or had not had a number of discussions with Davis. The fact that Davis was displeased with Corowa' response is not sufficient to support a finding that Corowa was negligent. [141] I determine that the evidence does not support a finding that Davis's injury arose out of, or in the course of, unreasonable management action taken unreasonably. While Davis found aspects of his work stressful, I accept Forster's evidence that she did propose a number of remedies to Davis, including that he access counselling. The evidence of both Currie and Forster indicates that Davis did not act on their advice. Davis's failure to act on their advice may be attributable to the fact that Davis was regularly accessing counselling across 2009 and 2010 in particular. In these circumstances, it was open to the Appellant to call evidence from the counselling Psychologists which may have supported the allegations that management were remiss in the manner in which they responded to Davis's complaints. Alternatively, such evidence may have shed light on specific recommendations addressing measures that might alleviate stress associated with grief and loss and which might properly be implemented by management of the PAH. In the end result, the simple fact that Davis complained and was dissatisfied with the management responses does not mean that the management action was unreasonable. This conclusion is particularly applicable in the circumstance where Davis was offered assistance but declined to accept the assistance on offer. Other Matters [142] It was not unreasonable for Forster to suggest to Davis that he consider redeployment as an option arising from any difficulty he had in coping with the HLO role. It was part of the HLO job description and an inherent requirement of the job for the HLOs to interact with and comfort seriously ill and dying patients. An HLO, like most other front line hospital workers, could not avoid contact with terminally ill patients who will pass away in hospital. It was not inappropriate for Forster to explore with Davis whether he was suitable for the role and committed to the job over the longer term. [143] It was inevitable that some tension emerged in the working relationship between Davis and Forster. Davis did not approach his administrative responsibilities with much enthusiasm and preferred to focus on the pastoral aspects of his role. Forster, on the other hand, was accountable for administrative or operational outcomes but was not directly responsible for the delivery of patient care or indigenous support. It was critical to the maintenance of hospital funding that key performance targets or benchmarks be met. Relevant to this case, this meant that the number of patients seen by HLOs each day was important, as well the consequential function of recording this data. This had implications for Davis in that he needed to limit the amount of time that he spent with each patient and he needed to enter the required data on a timely basis. It was reasonably clear on the evidence that Forster would have been required, from time to time, to intervene and direct Davis to divert time from pastoral activities to administrative activities and to take practical steps to ensure that he maximised the number of patients seen. In my view, the evidence indicates that Davis may have interpreted such interventions by Forster as demonstrating a lack of understanding of the importance of the cultural and pastoral elements of his -- 23 of 25 -- 24 role. Over time it was probable that Davis resented Forster's directions around the importance of operational targets and administrative follow-up. These circumstances gave rise to increasing tension and conflict in the relationship. [144] As at 31 January 2011, Davis was confronted with the prospect of counselling or disciplinary action relating to alleged unauthorised absences from work on 23 and 24 December 2010; significant errors in timekeeping; errors in his application for leave form; a failure to enter statistics for that part of the month of December 2010 that he had been at work and for preceding months when he arranged for a co-worker to enter data on his behalf; and misuse of his work issued mobile telephone. Some of these matters are canvassed in Davis's letter of complaint dated 16 February 2011[Exhibit 9]. There is a basis to argue that Davis's resentment and criticism of Forster was driven more by the expected adverse impacts of disciplinary action than by Forster's failure to respond to his concerns about conflict and grief and loss; however, it is not necessary that I make any finding in this regard. [145] Davis's complaints about Forster were not limited to her involvement in the foreshadowed disciplinary action. He also complained about Forster's cultural insensitivity and her disinterest in the clinical and care dimensions of Davis's role. He considered that Forster had little interest in the welfare of Davis or the indigenous patients he supported. The implication is that the motivation for Forster's behaviour or conduct directed toward Davis arose from, or was related to, an intent to humiliate or offend or embarrass. Alternatively, if there were no intent, a disposition on Forster's part to ignore cultural principles led her to disregard Davis's representations relating to the challenges he faced in the workplace. Such allegations if made out would contribute to a finding of unreasonable management action taken unreasonably. [146] After a review of all the evidence, and on the balance of probabilities, I find that Forster did not act in a racist, discriminatory or culturally insensitive manner towards Davis. The evidence did not establish any intent on Forster's part to act inappropriately towards indigenous staff. During the course of her employment with PAH Forster had supervised indigenous HLOs for approximately 3 years and prior to that had worked in an area connected with the HLOs for some time. Apart from Davis's complaints, there was insufficient supporting evidence for the allegations against Forster to be made out. [147] A finding of credit adverse to Davis has been made in relation to his evidence associated with his admission to PAH on 5 and 25 June 2010. Other matters contribute to doubts about Davis's reliability as a witness: • Davis tends to blame Forster for everything, while at the same time making few acknowledgements about his own performance deficiencies; • a review of all the evidence associated with Davis's attendance at work on 23 and 24 December 2010 could, on the balance of probabilities, give rise to a finding of credit adverse to Davis; and • in his evidence, Davis appears prone to exaggeration. For example, he exaggerates the incidence of conflict suggesting it was an almost daily event despite the fact that there was no documentary evidence of this and management were unaware of such a frequency. Additionally, the evidence supports a finding that Davis significantly exaggerated his workload. [148] In terms of workload, Davis originally stated in his WorkCover claim [Exhibit 2] that he saw up to 35 patients a day. Subsequently in his evidence in the proceedings he asserted that "our work was overloaded" and that he would see up to 20 patients a day [Transcript: 1-52]. Davis said in his evidence that if he saw a patient he would enter this activity in the hospital database [Transcript 1-103]. [149] Davis's exaggeration is revealed by an examination of Exhibit 16 which is a print out of the number of patients seen by Davis during two periods in 2010. The average number of patients seen per day based on this data is 4.56 and the number of patients seen per day ranged from 1 to 11. Forster's evidence in response to Davis's claims that he was extremely busy was to the effect that she had reviewed the data extending back to periods before Davis occupied the role and the data showed that the number of patients seen had declined; hence, she was sceptical of Davis's complaints that he was overworked. Conclusion [150] I conclude that while the Appellant claimed that stressors that were causative of Davis’s psychological injury had mainly arisen from aspects of his work which should not be characterised as management action, the stressors have predominantly arisen from management action taken or not taken, in particular by Forster. [151] I further conclude that on the evidence the relevant management response to work-related stressors does not constitute unreasonable management action taken in an unreasonable way. Accordingly, the Appellant's injury is excluded from s. 32(1) of the Act by the operation of s. 32(5) of the Act. -- 24 of 25 -- 25 [152] I dismiss Appeal No. WC/2012/332. [153] I confirm the decision of Q-COMP dated 13 August 2012 and find that the Appellant's Application for Workers' Compensation, originally lodged on 18 October 2011, is one for rejection. [154] I reserve the question as to costs. [155] I order accordingly. G.D. BLACK, Commissioner Hearing Details: 2013 14, 15 and 16 January 13 February (Respondent's Submissions) 28 February (Appellant's Submissions) 18 March (Respondent's Reply) 20 March (Appellant's Further Reply) 21 March (Objection Determined) 2 April (Respondent's Further Reply) Released: 2 August 2013 Appearances: Mr B. Munro of Counsel, instructed by Shine Lawyers, for the Appellant. Mr R. Clutterbuck of Counsel, directly instructed by Q-COMP, the Respondent. -- 25 of 25 --