Coombe v Q-COMP [2007] QIRC 69 (2007) 185 QGIG 331

[Extract from Queensland Government Industrial Gazette, dated 10 August, 2007, Vol. 185, No. 15, pages 331-335] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against decision of Q-COMP Briony June Coombes AND Q-COMP (WC/2006/75) COMMISSIONER EDWARDS 1 August 2007 DECISION The Appellant in this matter Briony June Coombes (Appellant) seeks an order pursuant to the Workers' Compensation and Rehabilitation Act 2003 (the Act) for a Q-COMP decision to be set aside. The Appellant worked as a Case Manager with CHR Job Network (the Company) from January 2005 until 16 January 2006. Even though the employer/employee relationship did not cease until 10 March 2006 the parties agreed that for the purpose of this matter the relevant date was 16 January 2006. Ms Coombes believed that she sustained anxiety and depression as a result of alleged workplace bullying and sexual harassment in her workplace. The alleged injury was the result of stress and negative mood symptoms that she developed in response to alleged sexual harassment and ongoing inappropriate comment and behaviour by her supervisor. Such problems began in June 2005 following the commencement of Mr Ken Goldstein as Regional Manager. At the commencement of the proceedings the Respondent conceded that Ms Coombes was a "worker". In submissions, Q-COMP outlined that on the basis of reports by Ms Keller, Dr Lotz and Dr Richards, Ms Coombes sustained a personal injury although there may have been some variation in the diagnosis. The following witnesses were called:  Ms B.J. Coombes;  Dr T. Lotz;  Dr T. Weller;  Dr W. Richards;  Ms M. Keller;  Mr A. Smith;  Ms C. Donald;  Ms M. Friday;  Ms M. Sainsberry;  Mr K. Goldstein;  Ms K. Brunker;  Mr K. Latter;  Ms D. Lampton;  Mr G. Berlin;  Ms M. Evans; and  Ms H. Carr. Section 32 of the Act states, inter alia, that: "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. ... (3) Injury includes the following - (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; -- 1 of 4 -- 2 (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. ... (5) Despite subsection (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; ...". The history that the Appellant provided to Dr Lotz was that Mr Goldstein started implementing many changes and in cross-examination she outlined that she was supportive of the changes that Mr Goldstein introduced. The statement dated 17 March 2006, which Ms Coombes provided to WorkCover, identified ten allegations she believed caused her decompensation. These were identified as follows: "Allegation 1: In approximately June/July 2005 Ken Goldstein commenced as Regional Manager. At about this time she was told by Debbie Lampton, senior in the office, not to say anything to help the two new trainees. During this time she had an office space change. During this process she informed Mr Goldstein about workplace health and safety requirements of an office which he interpreted as me 'whinging' about my office. Allegation 2: Consistently Mr Goldstein would touch his genitals when he was talking to Coombes. Allegation 3: Throughout this period from mid 2005 till January 2006 Mr Goldstein would make continuous sexual comments about his personal relationships, colleagues. Allegation 4: Caseload. Allegation 5: In October 2005 Mr Goldstein would constantly call her into the office and ask questions about her relationship or discuss Rick Huxley (finace`) with me. Goldstein gave her a lift home and discussed her and Huxley and her financial situation. His manner was invasive. Allegation 6: Refusal of Christmas leave. Allegation 7: On 22 December told Goldstein that I believed that our workplace was unhealthy and he needed to look at changing the culture regarding use of gossip and office talk. Allegation 8: Returned to work on 3 January 06 and her son had signed up as a job seeker. Goldstein continued to call her into the office between 3 and 13 January to talk about gossip and about her phone calls during her breaks from Huxley and her son being registered with IPA. A letter which he had previously signed and then ripped up the file copy. Allegation 9: On 12 January 2006, Goldstein informed her he had received 2 internal complaints. They were from two different colleagues who had not received the correct information. -- 2 of 4 -- 3 Allegation 10: On 13 January 2006, challenged Goldstein on the complaint from Heather. He was very snide to her and repeatedly said he had it on email in a threatening tone.". The Commission is satisfied that the manner in which Mr Goldstein and the Company investigated the allegations represented reasonable management action. Ms Keller, Psychologist opined that Ms Coombes sustained a major depressive disorder, single episode, moderate severity. In her report of 22 March 2006, Ms Keller outlined that there was no significant recent concurrent personal life stressors that were deemed likely to have contributed to the Appellant's condition. Ms Keller confirmed that Ms Coombes did not provide a history of a number of matters including:  "the sexual assault suffered by the Appellant;  the major stroke suffered by the Appellant's father in November 2004;  the secondary stroke suffered by the Appellant's father in October 2005;  the estrangement between the Appellant and her first son Ben;  no history of increased alcohol consumption by the Appellant in either October or November 2005;  no history was provided by the Appellant about the office being divisive, having distinct groups, or there being rumours and innuendo even prior to Mr Goldstein's commencement at CHR. Ms Keller confirmed that this would have been relevant information.". Although questioned on these matters Ms Keller outlined that she was only prepared to maintain her views on the basis of the information available to her at the time of her report. Dr Lotz, Psychiatrist in his report of 10 May 2006 outlined that Ms Coombes has sustained major depression generalized anxiety disorder. Dr Lotz noted that there are no pre-existing conditions and there did not appear to be any non work-related stressors. Dr Lotz in cross-examination expressed concern as to whether he was provided with the whole story on which to form an opinion. The failure by Ms Coombes to provide a complete outline and details of history of a number of matters resulted in medical opinions arrived at based on material provided rather than a complete history. As such, Dr Lotz was not informed of significant issues indicating the illness of Ms Coombes' father and opinions were arrived at based on the fact there were no personal stressors. The evidence of Ms Coombes covered all aspects of her employment from workload, poor work performance, gossip, work colleague relationships as well as aspects of her private life. In answer to questions during cross-examination, the Commission was provided with comprehensive details of stressors which were taking place outside of her work environment. In regard to her increased consumption of alcohol, Ms Coombes provided different times as to the dates upon which her consumption increased. Ms Coombes outlined that Mr Goldstein would touch his genitals when he was talking to her and would always look at her breast area and not directly at her. Ms Coombes' perception was that Mr Goldstein was displaying an abhorrent behaviour in front of her on a consistent basis. In response to questions she outlined that she did not raise her concerns with Mr Goldstein as she did not feel comfortable with such an approach. Furthermore, she did not raise or report her perceptions to responsible persons within the organisation. Overall, Mr Goldstein could not be regarded as a witness with class. His recollection of events ranged from denial to lack of recollection. In questions of touching his groin, the only time Mr Goldstein admitted his action was the result of discussion with Mr A. Smith. Mr Smith counselled Mr Goldstein and said, "be careful I can see how this could cause trouble". The Commission accepts the clear evidence of Ms M. Friday that Mr Goldstein adjusted himself in a manner as described by Ms Coombes. Furthermore, Ms Friday made reference to "girl talk" in the office. When the Appellant visited the psychiatrists and a psychologist, she did not advise them of other stressors in her life, but rather, relayed her feelings around the work-related issues. As Ms Keller outlined, in evidence: "All right. It's fair to say, is it not, Ms Keller, from the information provided to you by Ms Coombes during the course of the consultation that she was fairly focussed upon Mr Goldstein and his conduct as being the cause of her illness? That was certainly a significant factor for Ms Coombes, yes. All right. When you say 'It was a significant factor', are you saying that there was something else in play? Not that I was aware of, no. Not that you were aware of? No, that's what Ms Coombes was distressed with.". -- 3 of 4 -- 4 All of these practitioners have stated, during the course of giving evidence, that had all details been disclosed by the Appellant at the time of the consultation, they may have considered her condition differently. This factor must be borne in mind. However, in doing that, it does not negate the Appellant's evidence as to how the event which occurred at the workplace affected her psychologically and psychiatrically. I have accepted that the Respondent became aware of Mr Goldstein's behaviour. The average person would know that such behaviour is offensive. The Respondent would have or should have known that and, with such knowledge, should reasonably be expected to have drawn the conclusion that such behaviour could adversely affect the average person. They may not have known the extent to which such behaviour would offend, but suffice to say, there must have been an expectation that the average female exposed to such behaviour would be affected. In my view the Appellant was not a "hypersensitive person", rather, I viewed her as belonging to the category of an average woman with average responses to events. It may have been the case that she entertained "girl talk" of a sexual type on occasions with other women, but the events which occurred fell far outside of what was contained within that type of chatter. In considering this matter the Commission has taken cognisance of the management style of Mr Goldstein and accepts that Mr Goldstein had the authority to adopt an approach that ensured the operations were structured to perform in an efficient and effective way within the goals of the organisation. At the same time management had a responsibility to address the perception of Ms Coombes. The action of Mr Goldstein is of concern to Ms Coombes and other employees in the office. It is acknowledged that his action whether he was conscious of it or not affects the employees in a different way. In R v Turner, [1975] QB 834 at 840, Lawton LJ said: ". . . Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the fact as or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based . . .". In Pollock v Wellington, (1996) 15 WAR 1 at 3, Anderson J said: "Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be grounded upon those facts". It is of concern to the Commission that both Ms Keller and Dr Lotz in cross-examination confirm that on the basis of the additional factors raised, they had doubts as to whether they could find the employment at IPA was a significant contributing factor to the Appellant's condition. Having regard to the abovementioned cases as well as s. 32 of the Act, the Commission is not satisfied that employment was a significant contributing factor to the injury. Ms Keller and Dr Lotz stated in evidence that had they been made aware of all the personal circumstances of the Appellant they may have considered her condition differently. In the circumstances the application must fail. The appeal is dismissed. K.L. EDWARDS, Commissioner. Hearing Details: Appearances: 2007 19, 20, 21 and 22 June 4 and 5 July Released: 1 August 2007 Mr T.D. Betts instructed by Mr K. Kiyingi of Giudes & Elliott Solicitors on behalf of the Appellant. Mr P.B. O'Neill instructed by Ms T. Smith of Q-COMP on behalf of the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 4 of 4 --