Carter v Q-COMP [2006] QIRC 138 (2006) 183 QGIG 843

[Extract from Queensland Government Industrial Gazette, dated 10 November, 2006, Vol. 183, No. 15, pages 843-847] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against decision of Q-COMP Darius Adair Carter AND Q-COMP (WC/2006/8) DEPUTY PRESIDENT SWAN 27 October 2006 DECISION The appellant in this matter, Mr Darius Carter, seeks an order pursuant to the Workers' Compensation and Rehabilitation Act 2003 (the Act) for a Q-COMP decision to be set aside. The hearing before the Commission is by way of a hearing de novo. Mr Carter worked for the Queensland Police Force (QPS), primarily in the Traffic Camera Office, from April 2000 until August 2000 at an AO2 level. Mr Carter believed that whilst working for the QPS, he sustained an injury of the type described in s. 32 of the Act. The alleged injury caused to him was one of stress breakdown and depression and that the injury was caused by "line and senior management" subjecting him to "covert-then-overt workplace harassment; peer-to- peer covert workplace harassment" and an unfair and unfounded sexual harassment claim. QPS had placed Mr Carter on a diminished work performance program but he had resigned from the QPS before finalising that program. 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; (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. ... -- 1 of 4 -- 2 (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 onus of proof lies with the appellant to prove on the balance of probabilities that he was a worker who sustained an "injury" (as defined within s. 32 of the Act) which then entitles him to payment of compensation (see Queensland Health v Coyne and WorkCover Queensland v Shagadellic Pty Ltd (2001) 166 QGIG 422; Ivy v WorkCover [1999] QIC 65 and Adams v WorkCover [2001] QIC 18). In the circumstances of this case, it is not challenged that the appellant satisfies the requirement that he is a "worker" as defined within the Act. The respondent does not concede that the appellant has suffered an "injury" or that his employment has been a "significant contributing factor" to the injury and leaves that for the appellant to prove on the balance of probabilities. Therefore, what falls to be determined is whether the appellant sustained an "injury" and if so, whether employment has been a "significant contributing factor to the injury" and also whether such injury is excluded from the entitlement to compensation because of "reasonable management action taken in a reasonable way...". (see s. 32 of the Act). The respondent states that the appellant has not established that he suffered an "injury" within the meaning of the Act as there has been no evidence led to support that contention. The respondent also says the appellant has led no evidence to show that his employment was a "significant contributing factor" to his claimed injury. Because of that, the respondent believes that the Commission need look no further than those two grounds upon which to dismiss the appeal. That submission is correct. Mr Carter represented himself and did not call any other witness evidence and the only concession the respondent made to his claim is that it agreed he was a "worker" as defined by the legislation. All that was presented to the Commission by Mr Carter was a report from a Clinical Psychologist from the Park Road Group, Mr P. Stebbins. The respondent did not object to the tendering of this document by the appellant because, as the respondent states: "The only report which is in evidence is the report of Mr Peter Stevens (Stebbins). Now, Mr Stevens (Stebbins) hasn't been called as a witness, and that is a significant factor in and of itself. I let that report go in simply because the report does not indicate that Mr Carter has sustained any injury. If you read that report, which is Exhibit 2, you will see that the psychologist Mr Stevens (Stebbins) indicates that Mr Carter has an idiosyncratic personality but doesn't actually say that he has sustained anything that might constitute an injury.". (Transcript p. 314) Ultimately the decision I have made is that Mr Carter's claim must fail because of these deficiencies, but were those deficiencies not to have existed, Mr Carter's claim would have failed in any event in that, had it been found that he had suffered an "injury" and that his work was a "significant contributing factor" to his injury, reasonable management action was taken in a reasonable manner. Briefly, the reasoning and history behind that latter statement is as follows: Mr Carter represented himself at the hearing. In June 2005, the appellant lodged an application for compensation with WorkCover Queensland stating that he was suffering from a "nervous condition". Between April 2000 and August 2000, the appellant was employed in the Traffic Camera Office within the QPS. Around July 2000, the appellant claimed that he had been the victim of workplace harassment by his supervisor, Ms Pauline Stephens, and by Ms Tracey Tippler (the Team Leader in the Statutory Declarations Section). The allegation was that the abovenamed persons had actively engaged in increasing the complexity of the appellant's work, forcing the situation where he had to undergo "diminished performance" counselling. The appellant says that this harassment was sanctioned by the Manager of the Traffic Camera Office, Mr Lex Shuttlewood. -- 2 of 4 -- 3 The appellant resigned from the QPS on 25 August 2000 before the finalisation of the diminished work performance program. This application to WorkCover Queensland commenced some five years post these events. The trigger for the application occurred when the appellant attempted to gain certification for a fitness qualification from the Yeronga TAFE after that time lapse. The appellant alleged that in the area where the teaching was performed at TAFE, all the rooms were coloured white with the use of white melamine on the desks. Mr Carter said the desks were similar to the ones at the QPS. Being faced with this, Mr Carter experienced flashbacks, he was angry and he couldn't concentrate on his work. He also withdrew from social contact with other students. He did not seek medical attention because he did not want to take prescription drugs. WorkCover Queensland advised the appellant on 14 October 2005 that his application for compensation had been rejected. WorkCover was satisfied that the appellant had been a "worker" (s. 11 of the Act) and was also satisfied that the appellant had suffered a condition described as either a schizophreniform psychosis or a psychotic depression; and that, on balance, his employment with the QPS had been a "significant contributing factor" in the development of his condition. However, WorkCover Queensland then determined that the provisions of s. 32(5) of the Act had excluded him from the relief he had sought. That report was not tendered in this hearing nor was there any evidence adduced from the medical practitioner in question. Mr Carter believed that he was put into an environment where workplace harassment was more likely than not to occur. He was put into a team where some other members (Mr Nuttall and Ms Stephens) were unsuccessful applicants for a higher position. Mr Carter believed that these people felt threatened by him and, as a consequence, they made sure that his work became more complicated. Mr Carter also believed that Senior Sergeant Wayne Hutchins felt threatened by him and that Mr Nuttall "had read Wayne Hutchins' ploy" to put him into a team where the rate of work and the amount of information put to Mr Carter was almost "supersonic". When Mr Carter complained to Mr Lex Shuttlewood, he was told "well, we'll just give you the simple ones". Senior Sergeant Hutchins was not called to give evidence to the Commission. Mr Carter referred to "bust-ups" between various members of the staff - the end result of such being that he was "assigned the responsibility" of the fallout. In evidence, all of those witnesses claimed that there had been no altercations between them and I have accepted that evidence as being accurate. Other than Mr Carter's statements there is no evidence before the Commission to show that this was the case. Mr Carter said that he was required to work at "supersonic" speed in performing his duties. Contrary to that view, his supervisor, Mr Nuttall, Mr Shuttlewood and Ms Stephens, state that the work was not complicated at all and that Mr Carter was unable to achieve an acceptable level of performance. Mr Carter's submission that some of his work colleagues felt threatened by him holds little weight especially when Mr Carter was not a contender for the positions to which those colleagues aspired. I do not doubt that Mr Carter held those perceptions. They were, however, not a reality within the work environment and I am persuaded by the evidence of the aforementioned witnesses that Mr Carter was not performing at an acceptable level and that required the employer to take whatever remedial steps it considered relevant. In this case it was a Diminished Work Performance process. The type of work performance complained of included Mr Carter being given, by Mr Nuttall, 66 notices to photocopy which took him four hours to complete. As well, Mr Carter was asked to fold 500 notices with a machine that would normally take 20 minutes. Mr Carter folded 460 notices in one hour and 15 minutes. Mr Nuttall's evidence was that the work required to be performed by Mr Carter consisted of very basic duties e.g. work on the folding machine, collection of items from headquarters, delivery of film and mail. Mr Carter had been shown how to perform these duties but had experienced difficulty in performing them at an acceptable competency level. Mr Nuttall stated that "he was not as efficient as everyone else, seemed to have difficulties understanding the work and had a - didn't seem to be paying terribly much attention to detail". (Transcript p. 150) Mr Carter referred to a complaint made against him whilst working at QPS of sexual harassment. This complaint was made some few days after a sexual harassment course was held at the workplace. Mr Carter believed it to be surprising that anyone would pursue a complaint against him especially when all employees had only recently been through the course. As it transpired, the Sexual Harassment Referral Officer had spoken to Mr Carter, quietly, saying that the complaint was of a "low level" and was not to be pursued formally. Mr Carter was asked to give those who worked around him "their personal space". The matter went no further. -- 3 of 4 -- 4 There was evidence before the Commission, which I have accepted, that Mr Carter was prone to some of the actions described in that complaint, but that they were of insufficient significance to require further action. There is little to support the contention that simply because one had undertaken a sexual harassment course, one was then immune from offending in that manner. In any event, this matter was dealt with informally and I did not see it as representing any harassment whatsoever of Mr Carter. The rationale for the Diminished Work Performance Programme instituted by the employer was, according to Mr Lex Shuttlewood, to "actually help him increase his targets and perform to the extent that would have been acceptable for TCO". In my view, the employer had little option but to take this step towards improving Mr Carter's work performance. Mr Carter made submissions regarding the decision of the Q-COMP Review Officer not to provide him with the tape recording of an interview he had with Mr Lex Shuttlewood, Ms Patsy Jones and Ms Tracey Tippler on 5 July 2000 concerning managing diminished work performance. A transcript of the discussions had been provided. Q-COMP had made a decision that the tape recording of the interview would not assist them in their determination. Mr Carter had asked for the production of this recording prior to the commencement of the hearing. For reasons relating to statutory time frames in which to ask for such material and the vague comments concerning any relevance attached to such a recording, the Commission refused the application. Mr Carter stated that were one to hear the recording, one would realise that Mr Shuttlewood had seriously raised his voice at Mr Carter during the interview. Even were this to have occurred, and I am open to the suggestion that it had, it would still not alter my overall view of this matter. During this hearing, many of Mr Carter's assertions were plainly fanciful and/or so conspiratorial in nature that it would not have surprised me were some degree of frustration to have been exhibited by the recipient of such commentary. Such behaviour is not condoned, however, I am conscious of the President of the Industrial Court of Queensland, President Hall's comments in Bowers v WorkCover Queensland (No. C10 of 2002) where he stated "the circumstance that a system of work where 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". The management action taken was taken in a reasonable manner, but it may not necessarily have been without blemish. Mr Carter had complained at the end of the hearing that he had not understood the meaning of a hearing de novo. I have not accepted that complaint because documents before the Commission show that Mr Carter was asked about calling medical evidence for the purpose of establishing an "injury" and he had stated that he would not do so because of the cost involved and because he could not cross-examine any such witness. In considering all of the factors present in this matter, I am unable to find that Mr Carter suffered an "injury" or that his employment was a "significant contributing factor" to the injury. Were I to be wrong in this finding I would have found in any event that the action taken by the employer was reasonable management action taken in a reasonable way, s. 32(5)(a). I dismiss the appeal. Dated 27 October 2006. D. A. SWAN, Deputy President. Hearing details: Appearances: 2006 12, 15, 16 May 9, 20 June Mr D. Carter, the appellant. Mr A. McLean Williams instructed by Ms J Webb on behalf of Q-COMP. Released: 27 October 2006 Government Printer, Queensland The State of Queensland 2006. -- 4 of 4 --