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  • Unreported Judgment

Davis v the Workers' Compensation Regulator

 

[2019] QIRC 116

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Davis v the Workers' Compensation Regulator [2019] QIRC 116

PARTIES: 

Davis, Katie Anne

(Appellant) 

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/152

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

13 August 2019

HEARING DATES:

23 and 24 July 2018 and

12 and 13 November 2018

20 December 2018 (Respondent's Submissions)

8 February 2019 (Appellant's Submissions)

6 March 2019 (Respondent's Reply)

HEARD AT:

Maryborough and Hervey Bay

MEMBER:

Deputy President Bloomfield

ORDERS:

  1. The Appeal is dismissed.
  1. The Appellant is to pay the Respondent's costs of, and incidental to, the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where the Appellant contends she sustained a psychiatric or psychological injury during her employment - where Appellant bears the onus of proof to establish on the balance of probabilities that she sustained an injury - where purported multiple workplace concerns - where injury allegedly arose out of very specific circumstances - where statement of facts and contentions defines the nature and extent of the Appellant's case - whether the employment was the significant contributing factor to the injury - whether actions taken by management were unreasonable and/or taken in an unreasonable way - appeal dismissed.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 550

Industrial Relations Act 2016, s 531

Evidence Act 1977 (Qld), s 92

CASES:

Eric Martin Rossmuller v Q-COMP [2010] ICQ 004

Yousif v Workers' Compensation Regulator [2017] ICQ 004

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

Bowers v Q-COMP [2002] ICQ 8

Blackwood v Mana [2014] ICQ 27

Cairns v Freeman & Ors [2008] NSWSC 792

Blackwood v Adams [2015] ICQ 001

Carlton v Blackwood [2017] ICQ 001

WorkCover Queensland v Kehl [2002] ICQ 21; 170 QGIG 93

Q-Comp v QR Limited [2011] ICQ 31

APPEARANCES:

Ms J.M. Sorbello, Counsel instructed by Mr A. Land, Morton & Morton Solicitors, for the Appellant.

Mr S.A. McLeod, Counsel directly instructed by Ms C-L. Godfrey, of the Workers' Compensation Regulator, for the Respondent.

Decision

  1. [1]
    This is an Appeal by Katie Anne Davis (Ms Davis/the Appellant) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the review unit of the Workers' Compensation Regulator (the Respondent) dated 25 July 2017.
  1. [2]
    That decision confirmed the earlier decision of WorkCover Queensland dated 23 March 2017 to reject Ms Davis's 28 January 2016 claim for compensation in respect of a psychiatric/psychological injury said to have been sustained during her employment with PresCare in Maryborough in the period between 13 July 2015 and December 2015.

Issue for determination

  1. [3]
    The issue for determination in this Appeal is whether Ms Davis sustained an "injury" within the meaning of that term in s 32 of the Act.  The relevant legislation provides:

32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if -
    1. for an injury other than a psychiatric or psychological disorder the employment is a significant contributing factor to the injury; or
    2. for a psychiatric or psychological disorder the employment is the major significant contributing factor to the injury.

 

  1. (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
    1. reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
    2. the worker's expectation or perception of reasonable management action being taken against the worker;
    3. action by the Regulator or an insurer in connection with the worker's application for compensation.

Nature of Appeal and onus of proof

  1. [4]
    The nature of the Appeal is by way of a hearing de novo.  To succeed the Appellant must satisfy the Queensland Industrial Relations Commission (the Commission), on the balance of probabilities, that her claim is one for acceptance[1].

Background

  1. [5]
    PresCare has two nursing home facilities located in Maryborough, namely Yaralla Place (Yaralla) and Groundwater Lodge (Groundwater).  Ms Davis commenced employment as a Registered Nurse (RN) at Yaralla on an undisclosed date in 2013. On 13 July 2015 she moved to the role of Acting Care Coordinator* at Groundwater, which accommodated somewhere between 60 - 65 residents, with approximately 14 of them in a dementia wing. (*Note: Ms Davis said her role was Clinical Care Coordinator but the position description (Exhibit 2) describes the role as Care Coordinator.)
  1. [6]
    In her role as Care Coordinator, working between 7.00 am and 3.00 pm, she reported to Ms Melinda Andersen, Clinical Nurse Manager, who reported, in turn, to Mr Barry Murnane, Facilities Manager - Fraser Coast Region.

Facts and Contentions

  1. [7]
    On 1 November 2017 Ms Davis filed what was said to be a Statement of Facts and Contentions.  This document included the following content:

Background

  1. The Appellant was employed as the Clinical Care Manager (sic) at a residential aged care facility known as Groundwater.
  2. In her role as the Clinical Care Manager (sic) she became aware of significant deficits in the care provided to the residents of the facility and the conduct of the personnel for which she was responsible in managing (sic).
  3. The Appellant relies on her statement of 14 June 2016 provided to the Respondent as detailing these concerns.

…….

  1. Whilst the employer has provided submissions in respect to how some of the complaints were dealt with directly with the staff involved, there is no indication from the employer that at any time they provided the Appellant with feedback or reassurance that the issues had been dealt with.
  1. The actions of the employer in failing to liaise with the Appellant about her concerns about patient care is not reasonable management action.

Contentions

  1. The psychiatric injury is not excluded because it did not arise out of or in the course of reasonable management action taken in a reasonable way.
  1. [8]
    The inadequacies in the way the Appellant's case was framed, in that it simply referenced "concerns" in paragraph 4 and a very broad, non-specific, contention in paragraph 13, became apparent on the first day of proceedings in Maryborough when Counsel for the Respondent, Mr McLeod, raised a series of objections to the effect that matters being canvassed with Ms Davis in evidence-in-chief were either not mentioned in her statement dated 14 June 2016 or had only been raised in passing, without any detail.  As such, Mr McLeod argued, he would be unable to cross-examine the Appellant on parts of her evidence until he was provided with the opportunity to seek clarification and/or instructions from witnesses he proposed to call.
  1. [9]
    After hearing argument on the point, I ruled that Ms Davis would be permitted to give all her evidence-in-chief before the matter was adjourned to a date to be fixed, with her legal representatives to file a new Statement of Facts and Contentions which would allow both the Respondent and the Commission to understand the nature of the case being presented before the Appellant was cross-examined.
  1. [10]
    Subsequently, the Appellant filed an Amended Statement of Facts and Contentions (the Amended SOFAC), which included the following headings, text and topics:

 . . .

 Background

  1. The appellant was employed as the Clinical Care Manager (sic) at a residential aged care facility known as Groundwater.
  1. In her role as the Clinical Care Manager (sic) she became aware of significant deficits in the care provided to the residents of the facility and the conduct of the personnel for which she was responsible in managing (sic).

4-1 The appellant was born on 9 November 1982.

4-2 The appellant is a registered nurse and finished her training in 2010.

4-3 The appellant was employed by PresCare from 2013 until January 2016.

4-4 During the period of the appellant's employment with PresCare she was managed by Barry Murnane (Facility Manager) and Melinda Andersen (Clinical Nurse Manager at Groundwater).  The chain of command under which the appellant was acting was emailed by Andersen to the Groundwater staff on 22 July 2015.

4-5 The appellant was employed by Prescare variously as a registered nurse, Quality Manager and Clinical Care Manager (sic).  A Policy Manager deals with the documentation and implementation of policies.  A Clinical Care Coordinator's (sic) role is to oversee the quality of the care provided to the residents from a clinical point of view.  In her role as Clinical Care Coordinator (sic) she had no power or responsibility in relation to staff discipline or performance management.  The appellant was provided with a job description for the Clinical Care Coordinator (sic) role.

4-6 The appellant suffered a psychiatric injury as a consequence of the management of PresCare preventing her from performing her duties in accordance with the Clinical Care Coordinator (sic) job description.* (*Note: this point - which appears to be a contention rather than a purported fact - was not canvassed during the Applicant's evidence or during final submissions).

 

  1. CLINICAL ISSUES
  • Care plans and pressure sores (paragraphs 4-12 to 4-19);
  • Unsafe lifting (4-20 to 4-21);
  • Staffing levels (4-22 to 4-24);
  • The dementia ward carpet (4.25 to 4-26, plus 4-16A);
  • Carer - Jeffrey Dover (4-27 to 4-36A);
  • Further medication issues (4-37 to 4-41);
  • Undermining resident dietary requirements (4-42 to 4-44);
  • Sale of home brewed spirits to residents (4-45 to 4-47A); and
  • Deceased resident's possessions (4-46 to 4-47A).
  1. BULLYING AND TREATMENT OF STAFF
  • Non-existent disciplinary investigation (paragraphs 4-48 to 4-51);
  • Access to office (4-52 to 4-53);
  • The restraint forms (4-54 to 4-55);
  • Andersen calling the Claimant a liar (4-56 to 4-57);
  • The orange form checklist (4-58 to 4-62); and
  • The Appellant's password (4-63 to 4-66).
  1. At the direction of the Respondent (sic - should be WorkCover Queensland), the appellant was forensically assessed by Dr Apel, psychiatrist.
  1. Dr Apel, in his report of 15 December 2016, concludes:

  "The key stressors are multiple issues at her place of work, where she felt responsible for matters that management did not respond to, leading to adverse clinical care. These particular issues are of junior staff providing alcohol to patients and issues of the management of pressure sores this goes against her part of clinical responsibility".

  1. At no time during the time that the appellant was employed at Groundwater did the employer, through its servants or agents, take any action to reassure the appellant that the concerns she had raised where (sic) either being attended to or alternatively, despite those concerns the residents of Groundwater were being cared for appropriately and safely.
  1. The actions of the employer in failing to liaise with the appellant about her concerns about patient care was (sic) not reasonable management action.

Contentions

  1. The failure of the employer to take steps to rectify the patient care concerns of the appellant, or otherwise reassure the appellant that despite her concerns the patients were being appropriately cared for was unreasonable management action.  The psychiatric injury is not excluded because it did not arise out of or in the course of reasonable management action taken in a reasonable way.
  1. [11]
    Surprisingly, given that it was prepared after the Appellant gave her oral evidence, the matters raised in the Amended SOFAC, filed on 26 September 2018, contained far more detail than that provided by Ms Davis during her examination-in-chief on 23 and 24 July 2018. In that regard, it needs to be pointed out that the contents of a SOFAC are not evidence and cannot be relied upon to support or advance a case. A SOFAC simply records what a party proposes to establish by way of fact - through evidence it will lead and through the cross-examination of the other party's witnesses - as well as the contentions, in a legal sense, it will then advance in reliance upon those facts.
  1. [12]
    After the Amended SOFAC was filed, the Respondent filed an additional Statement of Facts and Contentions on 7 November 2018, to be read in conjunction with its original Statement filed in November 2017.  Reflecting leave granted to it during proceedings on 12 and 13 November 2018 in Hervey Bay, the Respondent also filed a further document on the latter date which included three additional disputed facts.

 The Appellant's case as opened

  1. [13]
    In opening the case on behalf of Ms Davis, Ms Sorbello of Counsel initially referred to the opinion of Dr Apel (as quoted above) about the nature and cause of the Appellant's psychiatric/psychological condition, and then said:

The appellant will allege that the employer failed to deal with the identified issues or failed to deal adequately with the identified issues of - sorry - that there was a failure to implement and review care plans as required by clinical standards; a failure to employ sufficient staff to implement and review care plans; the incorrect administration of medication to patients; the sale of alcohol by the employer's staff to elderly patients - some of whom were on schedule 8 drugs; the purchasing of fast food by the employer's staff for elderly patients - some of whom were on controlled diets; failure by staff to monitor patients on a timely basis; unsafe lifting practices; and, a failure to remove soiled carpet in the dementia ward.

The appellant will give evidence that at the time she commenced at Groundwater Lodge in July 2015, she was not authorised to take significant disciplinary action against the staff under her supervision. She will say she was permitted to have a conversation with a staff member who she identified was not performing satisfactorily but any more serious actions would be taken by the Clinical Nurse Manager, Melinda Andersen, and/or the facilities manager, Barry Murnane.

The appellant will say that the employer's failure to deal with those issues in terms of the care that was provided to the residents of the facility and indeed in respect of the workplace's practices that also resulted in the staff underneath her being potentially exposed to an unsafe work environment, that she was stressed in her role as a registered nurse as to the patient's health being placed at risk, that she was stressed about the - her inability to be able to ensure that appropriate clinical standards were being maintained, and she was stressed about her exposure potentially to the risk of prosecution for failing to meet the appropriate clinical standards by the governing body for registered nurses, being AHPRA (Australian Health Practitioner Registration Agency).

It will be submitted that the failure of the employer to appropriately address the deficits in the care that was being provided or to identify to the appellant the actions that the employer was taking to address care concerns identified by the appellant was unreasonable. It was unreasonable in that the appellant feared for the safety of the residents and staff under her care, was relatively powerless to press the issues resulting in the deficient care and was not given any assurance by the employer that deficient care was being addressed.

Evidence

  1. [14]
    Evidence was provided by the following witnesses (in order of appearance):
  • For the Appellant:
  • Katie Anne Davis;
  • Ms Vicki Hay, Administration Manager, PresCare;
  • Lucinda Cocking, employed in 2015 at Groundwater and Yaralla as a hospitality officer, a cook and a relief hospitality supervisor;
  • Ulrike Pearce, employed as Endorsed Enrolled Nurse in 2015 at Groundwater;
  • Susan Rogers, employed in an Administrative role in 2015 at Groundwater;
  • Sandra Doran, employed as an Endorsed Enrolled Nurse in 2015 at Groundwater;
  • Patricia Liebke, Lead Clinical Informatics Officer, Uniting Care Health; and
  • Dr Gregory Apel, Psychiatrist.
  • For the Respondent:
  • Kathleen Hawken, Clinical Nurse, employed by PresCare during 2015, and
  • Melinda Andersen, employed as Clinical Nurse Manager in 2015, overseeing both Groundwater and Yaralla.
  1. [15]
    Soon after the commencement of proceedings on 23 July 2018, just after the Appellant's case was opened, Mr McLeod, Counsel for the Respondent, advised the Commission that he would only be calling two witnesses (as above) because Mr Murnane "passed away suddenly during the course of these proceedings". His advice was noted by the Commission and received without comment by Counsel for Ms Davis.
  1. [16]
    I have detailed (below) the Appellant's evidence under the topic headings as they have been named by her in paragraph 4 of her Amended SOFAC, as recorded in paragraph [10] of this decision.  However, because of the "flow" of the examination-in-chief, where Ms Davis was essentially taken through events in the same sequence in which they were recorded in her diary, my summary will not necessarily follow the same topic order as she has listed them. As such, I have provided an identification number (e.g. A 3 - Staffing levels; B 2 - access to office) to assist readers to identify the evidence given under each topic heading by Ms Davis, and by other witnesses.
  1. [17]
    Further, the Appellant's evidence about several topics was difficult to follow (and to detail) because it was given by reference to the date a particular event occurred, rather than topic by topic.  In addition, some of her evidence included matters mentioned in her Amended SOFAC but not relevant to the topic heading under which it was recorded.  Where this occurred, that evidence is recorded under a new topic heading, with a crossreference to the topic heading under which it appeared in the Amended SOFAC.
  1. [18]
    Ms Davis said that when she commenced in the role of Care Coordinator at Groundwater she purchased a diary (Exhibit 1) to "keep a bit of a record".
  1. [19]
    Soon after she started she was provided with a Position Description (Exhibit 2) which listed the Key Responsibility Areas (KRAs) of her role, under the following headings:
  • KRA 1 - Technical Skills & Application;
  • KRA 2 - Administration, Documentation & Resources;
  • KRA 3 - Teamwork & Communication;
  • KRA 4 - Customer Service; and
  • KRA 5 - Continuous Improvement, Compliance & WHS.
  1. [20]
    Of particular relevance, KRA 2 stated:

Through the use of PresCare processes ensure that all administration and documentation requirements are initiated and completed in a professional and timely manner, as follows:

  • Conduct audits in line with management systems to ensure that all documentation is accurate, precise and legible and completed in a professional and timely manner;
  • Contribute to policy & procedure development and revision;
  • Assess new residents for admission and direct the admission process;
  • Work in partnership with the Facility Manager to ensure that rostering and work hours meet budgetary requirements;
  • Effectively use resources and monitor the usage of all resources within budget and Ageing guidelines and legal and professional standards;
  • Monitor the resource needs of residents - clinical, continence, personal etc. and act to either acquire these through established processes or to make recommendation to management for the supply of these;
  • Manage resident, client, and organisational information in accord with legislative and organizational requirements.

A 1 - Care plans and pressure sores

  1. [21]
    Ms Davis said that the day after she started at Groundwater a meeting was held in the pastoral room with several staff, at which time Ms Andersen introduced her as the Care Coordinator.  On that occasion she had a discussion with Ms Margaret Dube, a Registered Nurse (RN), in regard to wound care and pressure injuries but could not recall the substance of the conversation.  At the same meeting, Ms Andersen told her that the previous Care Coordinator (Ms Kathleen Hawken) had been stood down for attending work while intoxicated.  Ms Andersen said it was "bullshit", "fucking crap" and "hearsay", but Ms Hawken might lose her registration to practice because the matter had gone to AHPRA.
  1. [22]
    As soon as she started work at Groundwater Ms Davis undertook a review, at which time she identified a number of residents with issues relating to wound care, wound management and pressure injuries.  On 21 July 2015 Ms Dube emailed the Appellant with a list of residents with pressure injuries across the facility.
  1. [23]
    On 23 July 2015 the Appellant sent an email (Exhibit 4) to the Clinical team at Groundwater - as well as to Ms Andersen and Ms Hawken - which identified seven residents with pressure injuries at various stages. The email advised staff that, commencing that day, a strict 2/24 Pressure Area Care (PAC) regime was to be performed, maintained and documented and "Registered staff are to ensure that PAC is performed and documented each shift with reference to any changes, concerns, size, appearance and stage of the pressure injuries and email CC and CNM each shift until resolved".
  1. [24]
    On 23 July 2015 the Appellant also noted in her diary a conversation she had with Mr Murnane: "Advised Barry concerns regarding wound care, care plans, all overdue.  Can see Mel and Kath last did all pre accred in March.  Staffing concerns, ratios. …".  Mr Murnane allegedly said "Come to Groundwater.  See if you survive despite the care".
  1. [25]
    The Appellant said care plans are required to be undertaken by Registered Nurses every three months as well as when there was a change in a resident's mobility, diet, or in any of their needs.  They had last been undertaken in March 2015 and were out of date.  She said care plans are a legislative requirement and opined that if they were not in place and current then there was a risk to her registration as a Nurse. Why this was the case was not stated.
  1. [26]
    Because the registered staff (Registered Nurses and Endorsed Enrolled Nurses) allegedly "couldn't manage the workload", Ms Davis said she rectified the deficits in the wound care plans by reviewing each of the wounds, writing up the wound management plan, contacting the families, completing incident reports and "followed process to make sure that it was all completed".  In addition, she arranged for staff to be provided with training about pressure injury prevention and management - including through a self-directed learning package.
  1. [27]
    As to wound management, the Appellant entered a note in her diary on 28 July 2015 "Commenced Wound Audit" and explained that was the start of the "ongoing management" of wounds with the help of an Enrolled Nurse from Yaralla, Ms Sandra Doran, whose assistance she had requested from Mr Murnane.
  1. [28]
    The Appellant said she spoke to Mr Murnane on 29 July 2015 about what had been implemented, what was required with the pressure area care, the wound management, the staffing and the care plans.  However, the substance of the individual points raised during this discussion was not explained, either in evidence or in the diary. All that was recorded in the diary was the four subject headings mentioned above. An entry on the same date "Inservice - wound educ", was said to record Ms Davis's alleged practice of "grabbing the staff on each handover and providing them with education regarding wound care".  She said she took the step of providing such education "because it wasn't happening".
  1. [29]
    The Appellant agreed in cross-examination that completing a care plan was part of the registered nurses' role and she had clinical oversight of the plans.  If she thought the plans were inadequate she would have input into fixing the plan, effectively monitoring the personal and clinical needs of residents. She also agreed that after she arrived at Groundwater she audited all the care plans and brought them all up to date.
  1. [30]
    However, she disputed that the "orange form" - see below at paragraphs [54] to [59] - which was designed to record when care plans were reviewed and altered, had been implemented and was being used at that time "because the registered staff weren't completing the reviews". Nonetheless, she also agreed that it was part of her role to check whether the care plans were being updated and completed and that if she identified they were not being updated and completed she would then go to the registered staff and tell them they needed to be done.
  1. [31]
    The Appellant also agreed, somewhat reluctantly, that she also put in place a plan to monitor pressure injuries after she ensured the relevant documentation was complete and that incident reports had been done.  After that she continued to physically attend to residents' wounds herself because the registered staff weren't doing it.  She would monitor the wound folder every day and there were occasions where she would have to do all the dressings because they weren't being completed.  When asked by Mr McLeod why she was not receiving assistance, Ms Davis responded "I guess they didn't have time" and, later, "there weren't enough registered staff …".  She also introduced in-service training for staff in relation to wound care to remind them to be diligent.
  1. [32]
    In addition, the Appellant said that because the registered nurses weren't completing care plans she would complete them.  She discussed the issue of both care and wound plans with Ms Andersen who said "They've always managed it before.  They can do it.  You're not to do it".  Nonetheless, despite this instruction, Ms Davis continued to undertake these tasks herself (see more about this point in paragraph [39], below).
  1. [33]
    Ms Andersen was not cross-examined about any matter canvassed by the Appellant during her evidence under this topic heading.

A 2 - Unsafe lifting

  1. [34]
    The Appellant was concerned with the manner in which residents were being lifted by staff and raised this concern with Mr Murnane and Ms Andersen.  Ms Andersen told her that the staff had been shown how to lift safely so they knew what to do.  Ms Davis said she spoke to the Workplace Health and Safety Officer (WHSO) about the need to provide training for manual handling, as "a bit of a refresher".  Following this discussion, on or around 27 July 2015, the WHSO provided training for staff in manual handling.  After this, there were no further issues with unsafe lifting.
  1. [35]
    Under cross-examination (on 12 November 2018), Ms Davis could not remember giving any evidence about this matter during her examination-in-chief in July 2018. Nonetheless, she said that she could not recall any ongoing issues about unsafe lifting after the refresher training.

A 3 - Staffing levels

  1. [36]
    The Appellant said staffing levels were raised with her by several members of staff and referred to an entry in her diary on 29 July 2015 when a personal care worker raised this issue with her.  Ms Davis also said the volume of the pressure injuries showed her that "the staffing level was definitely a concern, that basic cares weren't being completed".
  1. [37]
    After being taken to another entry in her diary on 11 August 2015 (as a carryover from an entry the previous day), Ms Davis said that every time she saw Mr Murnane, "which wasn't, you know, a lot, when - I did sort of take that opportunity to raise concerns with him when I did see him".  She said her diary showed that she took the opportunity of his visit to raise with him (in the smokers' area) "concerns with wound management, staffing, care plans".  Again, no details of the conversation about the above matters was provided in oral evidence. Interestingly, the diary entry also included the comment "No action from Barry, Mel" although there was no suggestion from the Appellant that she had spoken to Ms Andersen.
  1. [38]
    In response to a further question asked of her in examination-in-chief, the Appellant said that at a staff meeting on 11 November 2015 "staff concerns" were raised. She "elevated" those matters - "increase in workload, staffing" - to Mr Murnane by, she thought, telephone. However, "the issue" was not resolved after that. In response to a question from myself about what "the issue" was, Ms Davis said it related to the increase in workload because the care needs of residents had increased and no extra staff had been employed.
  1. [39]
    In cross-examination, the Appellant said that while there were systems in place in relation to completing care plans and managing pressure wounds, things weren't being done and tasks weren't being completed by the staff. As such, she was doing them.  When it was suggested that she did not complain to Ms Andersen that she had been tasked with this responsibility, rather than registered staff, Ms Davis responded "I most definitely did discuss that with Melinda and Melinda would say to me 'They've always managed it before.  They can do it. You're not to do it'".  However, the Appellant agreed that despite the instruction she received from Ms Andersen she continued to undertake those tasks herself, saying "It had to be done".
  1. [40]
    Ms Andersen was not cross-examined on the topic of staffing levels or that the Appellant complained to her about completing care plans and managing pressure wounds because the registered staff were not doing them.

B 3 - The restraint forms

  1. [41]
    On 10 August 2015 the Appellant made a note in her diary in relation to "rounding boards" (whiteboards) at the facility.  These were located outside the nurses' stations and staff would initial or tick the board to signify that they had completed scheduled tasks concerning resident care.  The boards also contained some personal information about residents and, at times, their restraint history. 
  1. [42]
    When asked to explain this diary entry, Ms Davis said that she first became aware the whiteboards had been removed when Ms Doran told her that the staff were asking what they should do with the restraint documents as the boards had been removed. She suggested to Ms Doran that they should contact Ms Andersen on speakerphone to find out.  After a brief introduction to outline the purpose of the call, Ms Andersen allegedly yelled down the phone "You just put the fucking restraints out. That's it.  I'm coming over there" and slammed down the phone.  The nature of this conversation was confirmed by Ms Doran in her evidence.
  1. [43]
    However, Ms Doran's evidence somewhat contradicted the Appellant's evidence about her lack of knowledge of the removal of the whiteboards.  Ms Doran said one of her tasks was to help Ms Davis because she was at Groundwater "to improve the systems and fix issues".  On one occasion, Ms Davis told her they were taking the whiteboards off the wall and bringing in "new rounding board folders".  Ms Doran volunteered to "go around and collect whatever folders they've got in each wing so that we could accumulate whatever information they wanted into one folder" and took them back to Ms Davis's office.  It was at that point she mentioned that one of the personal carers had enquired whether the restraint forms were to be placed into the new rounding board folders. That was why they contacted Ms Andersen on the speakerphone.
  1. [44]
    The Appellant said that a little after the telephone conversation mentioned above, Ms Andersen came to the Care Coordinator's office and asked "Where are those bloody folders?"  Ms Andersen grabbed the folders off a chair and walked out.  Mr Murnane arrived around the same time and Ms Davis explained to him what had taken place.  They both went to the nurses' station, which was where Ms Andersen had gone. Ms Davis said "Hi Mel", but Ms Andersen responded by saying "I've already said hello to you".  Ms Davis responded "No, you didn't. You have just come in and said 'Where's those bloody folders?' and then left the room.". 
  1. [45]
    Other than to (perhaps) demonstrate some inappropriate behaviour on Ms Andersen's part, no other evidence was led about this matter.  For example, Ms Davis did not say whether Mr Murnane said anything to Ms Andersen or, more relevantly, did not explain how the events impacted patient care or safety and/or caused her to have concerns about her ability to provide care to the residents.
  1. [46]
    In examination-in-chief, Ms Andersen said the rounding boards were used to let staff know when a resident had been toileted, pressure area turned, fluids given, basic hygiene needs attended to, and so on.  They were taken down after the facility had an "unannounced visit" by the Department when the boards were seen to impact on residents' privacy.  The decision to take the boards down was made by Mr Murnane who sent around a memo.  "It was discussed at staff meetings as well".  Thereafter, A4 sheets recording the relevant information were kept in folders in the nurses' stations.
  1. [47]
    Ms Andersen was not cross-examined in relation to any of the matters alleged by the Appellant during her evidence on this topic or given by Ms Andersen during her evidence-in-chief.

B 4 - Andersen calling the claimant a liar

  1. [48]
    Ms Davis said she received a phone call (on speakerphone) from both Ms Andersen and Ms Hawken at which time they told her not to speak to "Administration", specifically Susan Rogers, "because she tells other staff what I say".  The Appellant said she responded by saying she did not feel that would be the case as Ms Rogers was far more professional than that.  She then went and had a discussion with Ms Hay and Ms Rogers, the Administrative Staff.  Ms Rogers told her that before she started at Groundwater, Ms Andersen had called her a liar "and, you know, basically defamed and defamated (sic) my character." (Note:  Although Ms Davis said she "elevated the matter" to Mr Murnane, her entry opposite the diary page on which the above matters are entered simply records "Advised Barry when he came to GWL Monday".  The diary entry of Monday, 17 August 2015 only records that she spoke to Mr Murnane about the phone call from Ms Hawken and Ms Andersen as well as his response, to the effect that "they just wanted you to be aware", and that he liked Ms Rogers too, "she was a good find".)
  1. [49]
    Ms Hay gave evidence that on one occasion Ms Davis came into the office and was very upset and pale.  Ms Davis said she had just finished a phone call from Ms Andersen who told her Sue could not be trusted and she was not to talk to her (Sue) about anything "because it would go back". Ms Rogers then became upset as well.
  1. [50]
    Ms Rogers' evidence was that prior to the Appellant commencing employment at Groundwater, Ms Andersen told her that she believed Kate was a known liar and would spend most of her time in HR due to the way she spoke to employees.  Ms Rogers also said that on one occasion Ms Davis came to the office visibly distressed. Ms Davis told her that she had received a phone call from Ms Andersen and Ms Hawken on speakerphone and they stated that "I (Rogers) was not to be trusted, anything she said to me would go further to other people and, yeah, just warning her off me".
  1. [51]
    In her evidence-in-chief, Ms Hawken said "I was present in a lot of telephone conversations and a lot were on speaker phone, but that, I don't recall.".  Under crossexamination, the witness said "… I don't recall the conversation happening, so I can't say whether it could or could not have (happened)".
  1. [52]
    Ms Andersen's evidence was that the alleged conversation about Ms Rogers, on the speaker phone with Ms Hawken in the room, did not take place.  Ms Andersen was not cross-examined on the matter.
  1. [53]
    Again, how the incident impacted patient care or safety, and/or caused her to have concerns about her ability to provide care to the residents, was not explained by Ms Davis.

B 5 - The orange form checklist

  1. [54]
    Ms Davis said that once she completed the care plan reviews, and had them up-to-date, Ms Andersen informed her that she needed to "put the orange document in place". However, she was not aware of any such document, or where it might be kept - including in the resident's files, where she had looked.
  1. [55]
    On 18 August 2015 the Appellant forwarded an email to Mr Murnane and Ms Andersen (Exhibit 5) in which she said:

Hello,

I have found the orange document - the care plan rv checklist. I plan to use it as a tool commencing tomorrow to go over all of the residents' information, and implement … are we placing in each resident's medication chart?

All care plans are up to date, and the GPs have been faxed (2 weeks ago) to perform the 3/12 monthly reviews of BMP, NI, DMP and medication charts.

  1. [56]
    On the same afternoon Ms Andersen replied (Exhibit 24) as follows:

That is great and the 3/12 review checklist will live in the resident file in section 4 with assessments.

We need our registered staff to be attending to care plan reviews and to call out for assistance when necessary, we are to oversee through the matrix that they (sic) performing as requested.

BMP & NI are only 12 monthly views (sic) not 3/12.

I have updated the matrix and hopefully it will stay updated. I will be looking at the matrix on a daily basis.

  1. [57]
    The Appellant said that the orange form was comprised of columns, such that when someone performed the three-monthly clinical care plan review they would initial it for that month.  The next time someone undertook a review they would again initial it for the relevant month.
  1. [58]
    In cross-examination, the Appellant agreed it was part of her role to check that the registered nurses were completing the orange form checklist correctly.
  1. [59]
    Other than providing the above factual evidence, the Appellant did not provide any commentary as to how, and why, this matter impacted patient care or safety and/or caused her to have concerns about her ability to provide care to the residents.

A 5 - Carer, Jeffrey Dover

  1. [60]
    The Appellant said performance issues were identified in relation to several staff members, including a Mr Jeffrey Dover.  On one occasion, a resident's son and daughter had approached the Appellant with concerns in respect of the neglect of their father, Mr W, by staff members.  Ms Davis immediately attended to the resident and apologised to the family.  After contacting the registered staff on duty, the Appellant was informed they had contacted Mr Dover to attend to Mr W at around 8.00 am as he was the personal care worker on duty.  The Appellant said she subsequently had a conversation with Mr Dover where he "basically tried to blame another staff member sort of thing".
  1. [61]
    The Appellant's diary contained an entry on 25 August 2015 which recorded that a meeting was held with Mr Dover, a file note was prepared "re: treatment of Mr W + Medication incidents - Elder abuse/neglect" and that it had been emailed - without saying to whom. For reasons which were not canvassed, neither the file note nor the email was available for tender.
  1. [62]
    A few days later, after having a discussion with Mr Dover about why certain medications had not been administered, the Appellant informed him that she was revoking his medication competency. Prior to doing this she had to speak to Mr Murnane and Ms Andersen because she did not have authority to take that action on her own initiative. 

In an email she sent to Ms Andersen, Ms Hawken and Mr Murnane (Exhibit 15) late in the afternoon of 1 September 2015 she said: "as per discussions Jeffrey's medication competency has been revoked - until such a time he can attend further training and be deemed competent".

  1. [63]
    On the following day, Ms Andersen came to Groundwater and Ms Davis went to talk to her in the Facilities Manager's office in relation to her concerns about Mr Dover.  While she was there, Mr Dover came in and wanted to have an impromptu meeting with Ms Andersen.  Ms Andersen told him that there would be another meeting with him to discuss additional training in order that he could get his medication competency back.
  1. [64]
    Ms Davis said that during her conversation with Ms Andersen about Mr Dover, she (Andersen) said "What do we do with Jeffrey?  Just chuck him off the bridge with concrete boots on?".  Ms Andersen also allegedly told Ms Davis that if she wanted to contact her she should use her own mobile phone, "don't put it in an email, just phone me in case Big Brother is listening*". (*Note: the Amended SOFAC does not include any comment about not using emails.  Further, the request relating to the use of mobile phones was said to require the Appellant, if she wanted to speak to either Mr Murnane or Ms Andersen, to contact them on their mobile phones.)
  1. [65]
    On 7 October 2015 the Appellant received a written complaint from a member of staff (a Ms Kirby) that a resident had been left in a wet incontinence pad for some time.  Ms Davis said she discussed this issue with Mr Dover and raised it via email* with both Mr Murnane and Ms Andersen.  She received a response from Mr Murnane (29 minutes later) in which he said he would call Mr Dover in for a chat on his next rostered shift.  However, to her knowledge, Mr Murnane did not deal with "it" on Mr Dover's next rostered shift.

*Note: it is difficult to know what to make of Ms Davis's evidence on this issue because the email exchange (Exhibit 9) suggests that the matters raised by Ms Davis went beyond the issue she gave evidence about, as can be seen below:

Ms Davis's email:

Please find attached as discussed letters* again concerning the care of Mr W.  Geoffrey (sic) again has been discussing with families things well out of his scope of practice as TF's daughter was quite concerned and upset. (* These letters were not tendered)

T's daughter was reassured & advised if there were any concern/s over the weekend the registered staff would have certainly contacted her.  Progress notes were reviewed.

Thankyou kindly,

Kate.

Mr Murnane's reply:

Thank you Kate, we will meet with Mr Dover on his next rostered day on.  We will complete some background research prior to the meeting.

Many thanks,

Barry.

  1. [66]
    Under cross-examination, the Appellant said it was her suggestion to revoke Mr Dover's medication competency and that both Mr Murnane and Ms Andersen agreed with this course of action.  Further, she acknowledged that once Mr Dover's competency was revoked the issue she had about Mr Dover's administration of medications was resolved.
  1. [67]
    However, the Appellant also expressed the view that she did not agree with Ms Andersen's comments to Mr Dover about being able to re-sit his competency tests (see paragraph [63] above), saying that she felt Mr Dover was challenging her decision to revoke his medication competency and Ms Andersen had just appeased him by telling him that he could go through further training to get his competency back.  Ms Davis also said that after Ms Andersen left Groundwater that day there was another incident concerning Mr Dover.  She telephoned Ms Andersen to talk about it, which was when she made the comment about throwing Mr Dover off the bridge with concrete boots on.
  1. [68]
    The Appellant said she felt Mr Dover should have been performance managed and issued warnings, and claimed she raised that point with Ms Andersen.  When it was suggested to her that no such discussion took place, she disagreed.  However, when she was asked to provide further details about that conversation*, and where she might have entered it in her diary, she was unable to do so. (*Note: Ms Sorbello objected to this line of questioning, arguing that the Appellant's Amended SOFAC recorded that Ms Davis made such request to both Mr Murnane and Ms Andersen on 25 August 2015 and it had not been challenged in the Respondent's SOFAC.  However, as stated earlier, the contents of a SOFAC are not evidence.  They merely set out the alleged facts which a party proposes to establish by evidence from its own witnesses and cross-examination of the other party's witnesses.  As such, given that this evidence only came out in cross-examination, I ruled that Mr McLeod was entitled to continue to cross-examine the Appellant on the matter, with leave granted to Ms Sorbello to ask additional questions of the Appellant if she wished.  However, this opportunity was not availed of.)
  1. [69]
    Under further cross-examination, Ms Davis said she made two anonymous complaints - one to AHPRA and the other to the Department - about Mr Dover "after the last issue*, I guess, when nothing was getting done".  This was around the end of November 2015.  Her complaint to the Department came back as "substantiated", but she was unaware of how the other complaint was assessed because it was lodged anonymously. (*Note: There was no evidence about what "the last issue" might have been.)
  1. [70]
    In evidence-in-chief, Ms Andersen stated that the issues concerning Mr Dover related to personnel hygiene and medication, as far as she could remember.  However, she did not have any dealings with any of his issues, which were handled by Mr Murnane.
  1. [71]
    Ms Andersen was not cross-examined in relation to any matter covered under this topic heading.

A 7 - Undermining resident dietary requirements

  1. [72]
    The Appellant said that Ms Lucinda Cocking, the head chef, had informed her - by email in late August 2015 (Exhibit 6) - that a member of staff, Tracey, had (amongst other concerns) purchased steak sandwiches and high fat foods for "the residents" when they were on a low-fat diet*.  Ms Davis said she "elevated these things" to Mr Murnane and Ms Andersen. On one occasion she was with Mr Murnane and Tracey "actually walked up and said 'Kate, would you like a steak sandwich?' and Barry put his hands over his ears and walked off". (*Note: Ms Cocking's email identifies two male residents, with the possibility of a third on a different occasion.)
  1. [73]
    Ms Davis said that she thought Mr Murnane's response when she "elevated" the issue about the steak sandwiches to him was "She's always been a good worker".  She also said that, to her knowledge, no steps were taken to rectify the situation.
  1. [74]
    Under cross-examination she claimed that the practice was still continuing when she ceased work in January 2016.

Cleaner knocking off early (included in the Amended SOFAC under the topic A 7 - Undermining resident dietary requirements)

  1. [75]
    The Appellant said it was also drawn to her attention by Ms Cocking that Tracey, a cleaner, was knocking off early on the weekend but filling in her timesheet to the effect that she had completed her entire shift. In one email, dated Saturday 29 August 2015, Ms Cocking advised that Tracey had said goodbye at 8:50 am but had signed off as having completed a 7.00 am - 11.00 am shift.  On Sunday, 30 August 2015 a second email from Ms Cocking said that she had seen Tracey driving away at 8:28 am but she had again signed off as having completed a 7.00 am - 11.00 am shift.  However, the Saturday email also cautioned "perhaps Tracey and Julie (Tracey's Manager) have an 'agreement' that I am not privy to that makes this practice perfectly acceptable. I do not want to imply poor code of conduct if there is a perfectly good reason for this behaviour".
  1. [76]
    Ms Davis said she raised the matter of Tracey leaving shifts early with Mr Murnane whose response was that she was a good worker.  To her knowledge, no steps were taken to rectify this situation.  The transcript then records the following questions from Ms Sorbello and answers by Ms Davis:

Question: How did it make you feel when you would raise these issues with the facility manager and they weren't addressed?

Answer: It was very disempowering that the staff could - and I guess I was there and I was present and responsible for that, so…".

Question: How did it make you feel about your ability to safely provide care for the residents in the facility?

Answer: It kind of took that away.

Question: And did that cause you any concerns for your nursing registration?

Answer: Yeah, it did.

Question: What were those concerns?

Answer: Well, that I had a moral and ethical responsibility to the residents, duty of care, and, you know, care that we needed to provide, it wasn't being provided.

  1. [77]
    Notwithstanding the content of the above questions and answers, the Appellant did not give any evidence about any concern she might have had - apart from the dementia ward carpet (see below at paragraphs [130] to [133]) - about the overall cleanliness of the facility.  Further, she also did not explain how, or why, the cleaner's alleged early departure impacted resident safety or caused her to have concerns about her registration.
  1. [78]
    In her evidence Ms Cocking said she witnessed staff leaving work before they were due to leave.  She also witnessed staff "going out and purchasing cigarettes, alcohol and food for residents when it was a breach of the residents' dietary requirements and the health code".  Ms Cocking sent emails to the Appellant on 28, 29 and 30 August 2015 (Exhibit 6) informing her of what she had witnessed.
  1. [79]
    During crossexamination Ms Cocking said she went down to Ms Davis's office and spoke to her at least on one occasion about the matters raised in her emails. Ms Davis was increasingly frustrated and it appeared to her (Cocking) that she (Davis) could not get any response from higher management, "and that was virtually what she told me". However, as would be obvious, Ms Cocking's evidence on this latter point was simply hearsay.

B 2 - Access to office

  1. [80]
    The Appellant said she overheard a staff member, Ms Turner, complaining about being called in for a shift.  She asked Ms Turner to come into her office to outline why she was disgruntled. After being told about the problem, she asked Ms Turner to put her complaint in writing so that it could be dealt with appropriately.  Sometime later, Ms Turner came back and asked her if she had received the letter which had been placed under her locked office door.  Ms Turner also told her that the correspondence was addressed to her, marked private and confidential. Ms Turner was not called as a witness.
  1. [81]
    Because the Appellant did not receive Ms Turner's letter she made enquiries of Ms Rogers in Administration.  Ms Rogers sent out an email on 11 September 2015 asking if anyone had seen the letter.  Ms Andersen replied on 17 September 2015 advising that she and Mr Murnane had it. Ms Rogers confirmed these facts in her evidence.
  1. [82]
    In examination-in-chief Ms Andersen said she recalled the incident.  The Appellant was on leave and she had to work out of Ms Davis's office.  When she saw the envelope she took it to Mr Murnane and they opened it.  She could not recall who the envelope was addressed to or whether it was marked private or confidential. Under crossexamination, Ms Andersen did not accept, on the basis of content of the email chain between Ms Rogers and herself, that the envelope was specifically addressed to Ms Davis.
  1. [83]
    Again, other than giving evidence about the facts recorded in paragraphs [80] and [81], Ms Davis did not provide any evidence about how, and why, this matter adversely impacted resident care or safety and/or caused her to have concerns about her ability to provide care to the residents.

Resident returning from hospital (included in the Amended SOFAC under topic B 5 - The orange form checklist)

  1. [84]
    At T1-65 to T1-66, the Appellant said that, generally, a Hospital would contact the Registered Nurse on duty and advise that a resident in their care was being transferred back to Groundwater.  On one occasion, she received a phone call from Ms Andersen in which she told the Appellant that she (Andersen) was her manager and that she (Davis) had to tell her everything about residents when they were returning from hospital.  Ms Davis said that Ms Andersen was yelling when she said this.
  1. [85]
    Apart from recounting the above event, and then being referred to the date of 9 September 2015 in her diary and asked "Is that the diary note you made in relation to that event?", the Appellant did not give any evidence about how this incident impacted resident care or safety and/or caused her to have concerns about her ability to provide care to the residents.
  1. [86]
    Although it was put to Ms Davis in cross-examination that this conversation did not occur, Ms Andersen was not cross-examined on the point.

A 6 - Further medication issues

  1. [87]
    The Appellant said there were a few medication issues involving Mr Russell Godfrey, a Registered Nurse.  On one occasion, she identified that he had not administered medications during an evening shift to residents in the dementia wing.  This was because the medications remained on the trolley used for medication rounds.  She and Ms Hawken discussed the situation with Mr Godfrey and he "basically said that 'yes', he had not administered any of them …".  The Appellant said she made a file note of the conversation with Mr Godfrey and emailed it to Mr Murnane and Ms Andersen.  During the conversation with Mr Godfrey, his medication competency was revoked by Ms Hawken, who told him he was required to undertake refresher training.  The file note (Exhibit 10) showed that the meeting was held at 11:30 am on 15 September 2015 and that Ms Hawken instructed Mr Godfrey not to administer any medication until he had completed the medication calculations training and achieved competency.  Ms Hawken also mentioned to Mr Godfrey that he was half way through his probation period.
  1. [88]
    Ms Davis said she "elevated" the issue to Mr Murnane because Mr Godfrey had made quite a lot of errors and there were "reports" - she did not say from whom - of him sleeping* on night duty as well. (*Note: this issue seems to have come to Ms Davis's attention much later than September 2015, most probably in November - see T3-52, 4048.  However, the only detail provided by her about any response she might have received from Mr Murnane is recorded in the following extract from the transcript at T172 and T174.):

Question: Can I take you to 15 September 2015; is that the note* that you made in relation to this event? (*Note: I am very skeptical about the provenance of the separate entry about "sleeping". It has been entered with a different pen to the other text on this page which relates to the matters recorded in paragraph [87] and reflects information Ms Davis only appeared to acquire in around November.)

Answer: Yes

Question: How did the response that you received in raising this issue to the facility manager make you feel about your ability to safely provide care for the aged residents in the facility?

Answer: It was concerning that that happened, I guess, the medication wasn't administered to dementia residents.

Question: And how did you feel about the response that was taken to raise any issue with Mr Murnane (sic)?

Answer: That there really wasn't a great response.

Question: Did that cause you any concerns for your nursing registration?

Answer: Well, to a degree, because things weren't followed through.

Question: Are there events that need to be reported to AHPRA?

Answer: So, conduct, you know, medication incidents, you know, serious incidents.

Question: In your opinion did this event warrant notification to AHPRA?

Answer: It did

…….

Question: Do you recall whether Mr Murnane addressed your view (as reflected in the file note referred to above) as to whether it should be reported to AHPRA?

Answer: No, I don't know.

Question: You don't?

Answer: I don't know.

  1. [89]
    On Monday 2 November 2015, Ms Davis sent an email to Mr Murnane, Ms Andersen and Ms Hawken in which she advised of  Mr Godfrey's failure to complete allocated tasks over the previous weekend.  Wounds which he reviewed had not been documented in the progress notes, as required by the wound management process, and several other wounds which were due to be reviewed were not looked at.
  1. [90]
    The Appellant said at one point (T1-82, 26-32) that she had a discussion about the matter with Ms Andersen, who instructed her to tell Mr Godfrey "it wasn't a positive outcome and a few other things" but soon afterwards (T1-83, 40-44) responded by saying "Nil" when she was asked what steps, to her knowledge, were taken in relation to Mr Godfrey and his management of wounds following that event.
  1. [91]
    It might have been that the Appellant was simply confused between the 2 November 2015 matter above and another issue which occurred a few days earlier, on 29 October 2015.  On the earlier date, she sent an email to Ms Andersen in which she reported that Mr Godfrey had just completed the 8.00 am medication round at 10:45 am.  She told Ms Andersen she had spoken with him to see why it had taken that long, but he provided no real reason. Ms Andersen responded several hours later with a rather cryptic message: "Russell to bring him in for a chat about medication management and clinical management.  That we are remaining to monitor his progress at this point it is not positive outcome".  Ms Davis responded "Brilliant. Thankyou kindly Melinda.".
  1. [92]
    During cross-examination the Appellant agreed that if she raised a complaint about a staff member's conduct with Mr Murnane, he would have to determine what to do next.  However, she was reluctant to agree that it was up to Mr Murnane, alone, to decide if a matter should be reported to AHPRA - saying that, as a Registered Nurse, she had a duty to report it as "part of your registration…".  In that regard, she said she made one anonymous complaint about Mr Godfrey to AHPRA, although it involved several issues, following the non-administration of medications to residents in the dementia wing.
  1. [93]
    The Appellant's evidence under cross-examination about what happened with Mr Godfrey after the 2 November 2015 email (see T-47 to T-53) was very confusing.  In the end, I gathered that the "chat" that Mr Murnane and Ms Andersen proposed to conduct with Mr Godfrey did not occur because he was sick on the day it was scheduled.  Although Ms Davis claimed that she had a conversation with Mr Murnane on a later date about whether he had spoken to Mr Godfrey, she could not remember when and there was no diary entry about such matter.  She also did not say what Mr Murnane said. Further, although she claimed that "nothing ever came about from it" she could not remember whether "they" had got Mr Godfrey back in to talk to him or not.
  1. [94]
    In her evidence-in-chief, Ms Andersen said Mr Godfrey wasn't completing his medication rounds appropriately and he would miss distributing some medications as well.  He was placed under supervision - she and Ms Hawken did rounds with him - and he was not allowed to be involved in any of the medication rounds without supervision.
  1. [95]
    Ms Andersen was not cross-examined in relation to any matter concerning Mr Godfrey.
  1. [96]
    Witness Ulrike Pearce, Endorsed Enrolled Nurse at Groundwater, said she was concerned that Mr Godfrey wasn't giving medication that was charted and she raised her concerns with Mr Murnane and Ms Andersen by emails dated 14 and 17 May 2015*. (*Note: This was prior to Ms Davis starting at Groundwater.)  Ms Pearce said she did not receive any response to her emails nor did she notice any difference in Mr Godfrey's performance and the practice of not giving medications continued during the period that Ms Davis worked at Groundwater.  However, no details were provided to support this very general allegation.

B 6 - The Appellant's password

  1. [97]
    A computer system was in place at Groundwater which the Appellant, unsurprisingly, accessed by way of a user name and password.  She said Ms Hawken telephoned her on the day after they both spoke to Mr Godfrey and requested her password.  When the Appellant asked why, "… (Ms Hawken said) she needed to log a job, and I said I could log - I can log the job, what is the job, and she said 'No, just give it to me'."
  1. [98]
    Ms Davis said that after giving Ms Hawken an incorrect password she felt really pressured, "incredibly pressured".  When Ms Hawken phoned her back to say that the password did not work, she told her (Hawken) that she would have to give her a call back because she was really busy.  The Appellant did not call back because she considered the request inappropriate.  She went to the Administration Manager, Vicky Hay, to ascertain how to change her password because she thought that Ms Hawken might work it out if she kept trying.  Ms Hay told her that she could not give anyone her password and arranged for the password to be altered.
  1. [99]
    Ms Davis also said that she was not sure if she told Mr Murnane about the matter or not, but claimed she received an email from him to the effect "we needed it just to log a job".  The Appellant was then taken to her diary and asked if the entry on 16 September 2015 was the note she kept of those events, to which she responded "yes".  However, the alleged email from Mr Murnane was not tendered.
  1. [100]
    In cross-examination Ms Hawken said she could not recall asking the Appellant for her password, saying "there was no need for me to have Ms Davis' password.  I had my own password".
  1. [101]
    Yet again, Ms Davis did not provide any evidence about how this incident adversely impacted resident care or safety and/or caused her to have concerns about her ability to provide care for the residents.

B 1 - Non-existent disciplinary investigation

  1. [102]
    The Appellant said that Mr Murnane asked her to call into Yaralla one afternoon for a quick chat.  He told her "because you've been so good to both Mel and I, we thought we should let you know that when you get home there will be a letter waiting for you".  When she asked him what it concerned, he told her that she "didn't disclose a disclosable outcome" at the time of her engagement.  She responded by saying that she did and had also completed "the statutory declaration and all that sort of stuff" when she started and "I was open and transparent about that". In response, Mr Murnane "sort of went, 'Mmm'".
  1. [103]
    Ms Davis said she felt that Mr Murnane did not believe her and that her job security wasn't very secure.  Why this was the case was not explained.
  1. [104]
    She telephoned Ms Vicki Buckle, the Queensland HR Manager for PresCare, and told her what had happened. Ms Buckle apologised and said "They had no right to do that. They had no authority to do that. There will be no meeting with Melinda and Kathleen".
  1. [105]
    During cross-examination Ms Davis said Ms Buckle told her that Mr Murnane had no right to commence an investigation and there would be no meeting.  Ms Buckle also apologised.  In addition, Ms Buckle told her there had been an administrative error and there would be no investigation. It had been a mistake.
  1. [106]
    However, the Appellant did not agree that it was a mistake and "very much thought it was very purposeful to remove me from my role ... considering I had 'elevated' all of these very serious concerns … Barry was happy to present me with a letter in regard to my conduct and, possibly, terminate my position.  However, none of the other issues were ever dealt with. So, it seemed quite purposeful".
  1. [107]
    Although the matter seemed to relate to disclosures made by Ms Davis in a professional indemnity insurance questionnaire she completed at the time of her engagement by PresCare, the content of the letter was not explained, and it was not tendered.  Further, Ms Davis did not explain how this incident impacted resident care or safety and/or caused her to have concerns about her ability to provide care to the residents.

A 9 - Deceased resident's possessions

  1. [108]
    The Appellant said that when a resident passed away the process concerning their possessions was that they would be collected by the family, or the family could donate them to other residents or to the room or to the facility.  She said that process was not followed on 7 October 2015 when Ms Doran reported to her that she had overheard Ms Dube, the Registered Nurse on duty, phoning the family of a deceased resident and asking for that resident's property.  Ms Davis said she advised Ms Dube that it was unethical and against policy and procedure and that, as a Registered Nurse, she should not take the property.  The Appellant said she "elevated it" to Mr Murnane and Ms Andersen, "I phoned and also sent an email".
  1. [109]
    The email (Exhibit 12) was sent to Mr Murnane, Ms Andersen and Ms Hawken on 8 October 2015. Ms Davis said she felt "very disgusted" about the way this issue had been dealt with by Mr Murnane - although she did not give any evidence about how Mr Murnane actually dealt with the matter.
  1. [110]
    The transcript (at T1-81) then records the following questions by Ms Sorbello and answers by Ms Davis:

Question: How did it make you feel about your ability to act as a - and provide safe care as the clinical care coordinator at the facility?

Answer: That I had none. I had no - yeah.

Question: Why?

Answer:  I - it didn't matter what I said as the clinical care coordinator. I was being overruled, and that was okay. You know, the facility manager can overrule the clinical care coordinator, of course. You know, it was against policy. It was against procedure. It was unethical, and I didn't want that to be happening to other residents and their families.

Question: did you remain at work that day?

Answer: No, I didn't.

Question: Why not?

Answer: I just - I just couldn't.

  1. [111]
    However, the content of Ms Davis's email of 10.54 am on 8 October 2015 portrays the incident in a somewhat different light:

Just wanted to advise (to cover myself) because Margaret Dube RN has presented to me to collect (a resident's) possessions - she states she has the okay from Kath and the daughter.

I advised Margaret that I personally would not do it, and it was against policy and procedure.

Thanks,

Kate

  1. [112]
    During cross-examination the Appellant said that she received no response from Mr Murnane, and Ms Dube was allowed to use the facility vehicle to remove the resident's property.  Although the Amended SOFAC recorded that the Appellant learnt on 8 October 2015 that Mr Murnane was not going to do anything in relation to the matter, Ms Davis queried of Mr McLeod (when he started to ask her a question based on that premise) "specifically, how did I learn that…?".  At that point it emerged that she had not read the Amended SOFAC.  In any event, she continued by saying she "possibly" learnt of management's decision not to do anything about it by the fact that Ms Dube proceeded to take the property.
  1. [113]
    While the Appellant said under further cross-examination that she accepted that Mr Murnane could overrule a decision made by somebody underneath him, she also recorded her agreement with the content of paragraph 4.47A of her Amended SOFAC when that was read out to her.  Relevantly, this stated that she: was disgusted with the manner in which Mr Murnane dealt with the issue and it made her feel that she had no ability to provide safe care because her decisions could be overruled by him, even if it was against procedure and unethical*. (*Note: No policies, procedures or guidelines were tendered to support either of these assertions.)
  1. [114]
    Ms Davis did not give any other evidence, by way of example or otherwise, to support her feeling that she had "no ability to provide safe care" because she could be overruled by Mr Murnane.  Similarly, she did not provide any evidence about how this incident adversely impacted resident care or safety.
  1. [115]
    In her evidence-in-chief Ms Andersen said she became aware of the incident involving Ms Dube, and that the Appellant was unhappy with what had occurred, "after the fact".  Under cross-examination, Ms Andersen denied being aware that Ms Davis was unhappy about the furniture being taken by Miss Dube prior to it actually being taken.

Appellant being contacted whilst on sick leave (included in the Amended SOFAC under topic B 6 - The Appellant's password)

  1. [116]
    From 12 to 21 October 2015, inclusive, and again on 5 and 13 November 2015 (amongst other dates), the Appellant took sick leave.  During this time Ms Andersen telephoned the Appellant and left messages "more than five times" (Exhibit 17).  Upon contacting Ms Andersen on 13 November 2015 the Appellant was advised she would be returning to night duty and Mr Murnane would contact her later that day. 
  1. [117]
    Other than recording those facts, there was no other evidence about why the above events were included in the Amended SOFAC.  Further, there was no cross-examination of Ms Andersen in relation to this matter.
  1. [118]
    On the morning of Thursday 12 November 2015 Ms Andersen distributed an email to staff about which senior staff would be on call over the following few weeks.  This showed that Ms Davis would be on call from Friday 13 to Thursday 19 November 2015, inclusive.  In the very late afternoon Ms Davis sent an email to Ms Andersen which said:

Hi Mel,

I've noticed I'm on call commencing tomorrow … I'm on registered leave for the next two days …

And, the new leave calendar, my holiday dates are no longer on there (for December and January).

Kindest regards,

Kate.

  1. [119]
    As with the earlier item about telephone messages, there was no evidence led about why this matter was included in the Amended SOFAC.  In addition, there was no evidence about how Ms Andersen addressed the two issues raised by the Appellant in her email.
  1. [120]
    Further, as was the case with a number of other topics raised in the Appellant's Amended SOFAC, Ms Davis did not provide any evidence about how either of the two matters referred to under this topic heading adversely impacted resident care or safety and/or caused her to have concerns about her ability to provide care to the residents.

A 8 - Sale of home brewed spirits to residents

  1. [121]
    The Appellant said that on 20 November 2015, while doing a walk around the facility, a staff member, Ms Arlene Kirby approached her and disclosed that she "had done something stupid … selling home-brewed spirits to the residents".  Ms Davis said that Ms Kirby told her that Ms Andersen was aware of the issue and "told (me) not to tell (you)". Ms Kirby also said "Melinda can't find out that I've told you".  The Appellant then asked Ms Kirby to put it in writing and also asked whether she had received disciplinary action, "but that might've been the next day after I had a discussion with Vicki Buckle - who 'wanted to know whether she (Kirby) had received any disciplinary action, and she hadn't'".  The Appellant told Ms Kirby that what she had done was not appropriate. 
  1. [122]
    The Appellant sent an email (Exhibit 19) to Ms Andersen on 23 November 2015 in which she indicated that Ms Kirby had advised of her practice of bringing in home brewed spirits and that you (Andersen) had spoken with her on Tuesday of the previous week. She then asked Ms Andersen why she had not mentioned the matter and expressed the view "it is a huge risk to my registration - especially if I'm not made aware".
  1. [123]
    Ms Davis also spoke to Mr Murnane who said he knew about it.  He also allegedly mentioned that he had heard about another personal carer having the ATM card of one of the residents.
  1. [124]
    The Appellant said that a handwritten note on the bottom of Exhibit 19 reflected the concerns she raised with Ms Andersen, in a second email sent on Monday 23 November 2015, about the impact and the increased risk that "it" (I assume the alcohol) had for the residents.  However, this email was not tendered.  The handwritten note also included reference to a handwritten statement from Ms Kirby to the effect that she was told to keep the matter between Ms Andersen and herself and that she had not received any formal … (words missing from photocopy).  A partial, virtually illegible, photocopy of a handwritten document (Exhibit 21), said to be Ms Kirby's statement, shows that it was prepared on 27 November 2015.  Given this date, Ms Davis's handwritten note on the bottom of Exhibit 19 could not have been prepared before that same date.
  1. [125]
    Further, Ms Davis did not explain why she found it necessary to write such a detailed note about the matter, on the bottom half of the first email, given that she had allegedly sent the second email immediately after the first.  Her evidence that she provided the information to the Department of Health and Ageing does not explain its absence.
  1. [126]
    During cross-examination the Appellant said Ms Kirby told her that Ms Andersen had said "Do not tell Katie" and that the matter was to stay between the two of them.  Later, after Ms Davis spoke to Ms Buckle, she had a second conversation with Ms Kirby during which the latter said she had not received any disciplinary action.  Ms Kirby was not called as a witness.
  1. [127]
    In further cross-examination the Appellant continued to assert, based solely on what Ms Kirby told her, that no action was taken by management in relation to the matter.
  1. [128]
    In her evidence in relation to Ms Kirby bringing alcohol onto the premises, Ms Andersen said she spoke to Ms Kirby and "made a file note that it's not PresCare's process, it's inappropriate, and that is not to happen again or there would be a formal process happen … and it never happened again".  She also said she reported the matter to Mr Murnane and it was up to him to decide whether there would be a formal process. She did not have any knowledge about whether any other action was taken against Ms Kirby. 
  1. [129]
    Under cross-examination, Ms Andersen denied telling Ms Kirby not to tell the Appellant of the events. She also acknowledged that she did not tell the Appellant about the matter before Ms Davis raised it. However, he was not challenged in respect of her evidence about having told Ms Kirby that what she had done was inappropriate and not to bring home brewed spirits to Groundwater again.

A 4 - The dementia ward carpets

  1. [130]
    Ms Davis said she had concerns, in her first week at Groundwater, with the carpets in the dementia unit being "odorous and contaminated" as well as an "infection control risk".  She had discussions with Ms Andersen and Mr Murnane about the state of the carpets and the need to do something about them.  She claimed - in response to a series of questions from her Counsel - that the carpets were never rectified to the point they were no longer smelly and that the state of the carpet caused her concerns about her ability to care for the residents in the facility because "It was contaminated.  You know, we had residents living on - on that carpet. We had families visiting their loved ones in ---".
  1. [131]
    On 3 September 2015 Mr Murnane sent an email to Ms Davis and another member of staff he had consulted about how to address the smelly carpet issue, in which he said "… I will get the professional people to shampoo the corridors and then we will hit (it) with the carpet deodorizer as an ongoing plan.  I will arrange with Sue to contact the cleaners". (Exhibit 22). 
  1. [132]
    Although the Appellant agreed in cross-examination that the carpets were cleaned and shampooed after the matter was raised with Mr Murnane, she argued that it was not effective because there was concrete under the carpet, and "it sort of trapped 'it' and made 'it' actually worse*".  In any event, she agreed that the carpet was replaced in around January 2016. (*Note: 'it' seems to be the smell: T2-16, 19-23 and paragraphs [130] and [131] above.)
  1. [133]
    In any event, how "it" adversely impacted resident care or safety and/or caused the Appellant to have concerns about her ability to provide care to the residents was not fully explained.

Evidence of Ms Liebke

  1. [134]
    The Appellant called Ms Liebke, a Registered Nurse since 2001.  She had spent a significant amount of time as a medical surgical educator at St Andrew's Hospital, then surgical educator at the Wesley Hospital.  She had also been the Learning and Change Manager at Uniting Care Health and was currently the lead clinical informatics officer for that organisation.  She had also worked in an aged care facility "a long time ago", having performed 20 or 30 shifts.
  1. [135]
    In relation to an employee bringing alcohol into a facility for residents, Ms Liebke said it would not be appropriate.  She also said she would be concerned if medications were missed.  It was something which would need to be reported up to management and to the next level up if they were repeatedly missed.
  1. [136]
    Ms Liebke gave evidence in relation to pressure injuries, care plans, the importance of medication rounds and charts.  Her evidence as to appropriate management of the facility was objected to by Mr McLeod on the basis that Ms Liebke was not an "expert".  In response, Ms Sorbello argued that Ms Liebke was extremely qualified to express an opinion as an experienced Registered Nurse.
  1. [137]
    In its submissions, the Respondent argued that the views of Ms Liebke as to what action should have been taken by management in relation to the matters raised by Ms Davis was her personal opinion and should not be relied upon by the Commission.
  1. [138]
    I agree with the Respondent's submission. Ms Liebke was not an expert and, while highly qualified, could only express a personal opinion about how she believed particular matters should have been managed or otherwise dealt with. However, as it turned out, because of the precise nature of the Appellant's case and the evidence given by the Appellant and others, Ms Liebke's opinion was not relevant to the decisions I was required to make in coming to my ultimate conclusion in this matter.

Medical consultations

  1. [139]
    The Appellant said that she consulted a doctor in October 2015 about "worries" and "concerns" she had in relation to many things being left unresolved and up in the air:  "…nothing had sort of been finalised - disciplinary action, those sorts of things…".  Her doctor suggested she take some leave, which she did in October, after which she "tried to go back to work and just work".  After seeing the doctor again in January 2016, and receiving a Workers' Compensation Medical Certificate, she lodged a claim for workers' compensation on 27 January 2016.
  1. [140]
    Although no one took me to it, I note that the Workers' Compensation Medical Certificate, also dated 27 January 2016, records that the treating doctor first saw Ms Davis for an injury diagnosed as chronic anxiety disorder and anxiety/depression on 10 October 2015, with the date of injury recorded as 7 October 2015, due to "stress and problems from place of work". I note in passing that this was the date that the event concerning the deceased resident's furniture occurred.

Medical evidence

  1. [141]
    The Appellant saw Dr Gregory Apel, Psychiatrist, on 13 December 2016 at the direction of WorkCover Queensland.  A report dated 15 December 2016 from Dr Apel was tendered (Exhibit 27).
  1. [142]
    Under cross-examination, Ms Davis remembered discussing a number of matters recorded in her Amended SOFAC with Dr Apel, but not everything they discussed because "I don't have the best memory".  She remembered discussing: the sale of alcohol to the residents and not being informed; the volume of the pressure injuries; a resident's property when the resident passed away; and, "just that nothing was ever done about those things".
  1. [143]
    She also remembered telling Dr Apel that the phone calls she received from Ms Andersen while on sick leave were "vaguely threatening". This was when Ms Andersen contacted her to tell her that she would be returning to night duty and to keep her phone handy because Mr Murnane was going to contact her.  She said she took this as a threat "because, I guess, there was no real stability in my role surrounding my position".
  1. [144]
    At pages 2, 3 and 4 of his Report, Dr Apel provided some brief details about the matters raised with him by the Appellant. Without referring to the content of what he recorded, the topics canvassed were (using, where relevant, the Appellant's topics as listed in paragraph [10] of this decision):
  • A 1 - Care plans and pressure sores;
  • A 8 - Sale of home brewed spirits to residents;
  • A 9 - Deceased resident's possessions;
  • a staff member turning up for work intoxicated in 2015;
  • a cleaner turning up for work who would then sit outside and smoke and leave after a brief period of time, not doing her work;
  • the same cleaner was also giving cigarettes and alcohol to particular residents;
  • multiple calls at home while she was on leave, which were not answerable requests but, rather, calls that were vaguely threatening - i.e.  that she would be returning to work on night shift;
  • falsification of workplace health and safety meeting minutes; and
  • as a consequence of that, Ms Andersen (allegedly) being given "12 months' disciplinary action".
  1. [145]
    Dr Apel opined that the Appellant suffered a psychological injury of an adjustment disorder with depressed mood[2] with the date of injury to be approximately September or October 2015[3].  He concluded his Report as follows: (Exhibit 27, p 11):

The key stressors are multiple issues at her place of work, where she felt responsible for matters that management did not respond to, leading to adverse clinical care.  These particular issues are of junior staff providing alcohol to patients and issues of the management of pressure sores this goes against her part of clinical responsibility.

I would see her employment as a significant contributing factor, and with the removal of this workplace and treatment she has gotten better.

  1. [146]
    Under cross-examination, Dr Apel said it was his customary practice to let the patient give a fairly open account of matters, in their own words, before he would start to specifically question them or try to refine matters. In that respect, he agreed that the matters recorded at pages 2, 3 and 4 of his report were the "stressors" that Ms Davis conveyed to him as being matters she considered to be problematic in the workplace.
  1. [147]
    When asked if the matters Ms Davis had highlighted to him were the "key stressors" (see quote in paragraph [145] above), he responded by saying: "The issue is not so much the incident.  It's the response of the person to the incident.  And the impression I had here was a fairly responsible individual who was stressed at the - the volume of issues she had to face in this role".
  1. [148]
    In response to a question from Mr McLeod about whether his reference to "these particular issues" (see same quote in paragraph [145] above) meant that he saw the two issues mentioned as the predominant stressors/issues causative of Ms Davis's workplace injury, he said: "I am not really in a position to be - to put stressors in their rank order because it's a cumulative thing.  The fact that I've put those in a special note at the end, I think could more likely indicate that Ms Davis found these more egregious issues than the others … But I put them, really, in the totality of everything … But they are - they are kind of conspicuous, unarguable matters … So they (i.e. pressure sores and providing alcohol) are categorically bad things, rather than differences of opinion on how to do things".

Submissions

Respondent's Outline of submissions

  1. [149]
    By agreement between the parties, the Respondent filed its outline of submissions (25 pages, 126 paragraphs) before the Appellant lodged her submissions.  The Respondent's submissions addressed:
  • the nature of the case presented by the Appellant;
  • the evidence given by the Appellant and other relevant witnesses in relation to each of the Appellant's workplace concerns, as revealed during her evidence-in-chief, and the conclusions the Commission should reach after considering the evidence;
  • the irrelevance of Ms Liebke's evidence; and
  • the failure of the Appellant to demonstrate that the actions taken by management were unreasonable and/or taken in an unreasonable way.
  1. [150]
    However, because of the nature of the Appellant's submissions and the Respondent's reply to them (see below), I do not propose to summarise the Respondent's Outline of submissions in any detail.  Rather, I shall only record several major points which addressed the nature of the case presented by the Appellant, as follows (the references at the end of each dot point are paragraph numbers from the submission):
  • The nature of the appellant's case is set out at paragraph 13 of the Amended SOFAC (quoted at paragraph [10] of this decision). (see paragraph 2);
  • "The appellant's amended statement of facts and contentions relies upon a number of workplace stressors and the appellant gave evidence in respect to the purported stressors. Somewhat remarkably, she stated that she had never actually read the amended document". (paragraph 3);
  • Ms Davis's position description (Exhibit 2) relevantly records (at KRA 2) that: "… the position entails (in part): conducting audits to ensure all documentation is accurate and precise; contribute to policy and procedure development and revision; monitor resident care; monitor resource needs of residents, and, manage resident organisational information …". (paragraph 4);
  • "For the purposes of the appeal, it is important to note that the appellant does not rely (as part of her stressors) on a number of issues which are recorded in the report of Dr Apel, namely: a staff member turning up to work intoxicated; a cleaner giving cigarettes to residents; alleged falsification of Workplace Health and Safety meeting minutes and that Ms Andersen was given 12 months' disciplinary action". (paragraph 13);
  • "…  The appellant relies on multiple stressors. Much of the appellant's evidence was given in a generalised manner and at times in a scripted fashion.  The appellant's reluctance on numerous occasions in cross-examination to answer the precise question being asked must go to her reliability as an honest witness.  She was prone to deliberately giving unrelated answers to questions being asked of her.  Other than setting out purported problems in the workplace, the evidence to support any allegation of unreasonable management action is very difficult to discern.  That is because, in most instances, the appellant failed to give such evidence.  At best for the appellant is that she held particular views different to how things were dealt with by management.  Little assistance can be gauged from the appellant's amended statement of facts and contentions . . .". (paragraph 17). (My emphasis)
  • "… It would appear Mr Murnane made a mistake and the matter (i.e. the non-existent disciplinary investigation) went no further.  The perception the appellant had in respect to the actions of Mr Murnane amounts to mere speculation on her behalf.  At best for the appellant's case is that there was a blemish in the way Mr Murnane had acted: Qantas Airways Limited v QComp[4].  In other words, management action need not be perfect: Bowers v QComp[5].  Consequently, there is no substance in the appellant's complaint that management action was somehow taken in an unreasonable way". (paragraph 112); and
  • "The appellant bears the onus that s 32 (1) of the WCR Act applies and that s 32(5) does not apply: Blackwood v Mana[6].  The respondent submits, for the reasons stated above, the appellant has failed to demonstrate that the actions taken by management were unreasonable and/or taken in an unreasonable way.  Accordingly, s 32(5) applies to exclude the appellant's injury". (paragraph 125).

Appellant's submissions

  1. [151]
    The Appellant's written submissions (5 pages, 30 paragraphs, plus an attachment) stated, inter alia:
  1. It is not in dispute that the appellant has suffered psychiatric injury.
  1. The only psychiatric evidence before the tribunal is that of Dr Apel.
  1. Dr Apel opines the appellant suffered an adjustment disorder with depressed mood (with) the date of injury to be approximately September or October 2015.  Importantly he opines:

 The key stressors are multiple issues at her place of work, where she felt responsible for matters that management did not respond to, leading to adverse clinical care. These particular issues are of junior staff providing alcohol to patients and issues of the management of pressure sores this goes against her clinical responsibility.

 I would see employment as a significant contributing factor …

  1. Under cross-examination Dr Apel noted "the impression he had was a fairly responsible individual who was stressed at the - the volume of issues she had to face in this role".
  1. Consistent with the opinion of Dr Apel, the appellant alleges that her injury arose out of the failure of PresCare to take steps to rectify the patient care concerns of the appellant or otherwise reassure the appellant that despite her concerns the patients were receiving appropriate care.
  1. It is the failure to address these issues that the appellant contends was not reasonable management action and therefore her injury is not excluded from the act.
  1. Contrary to the submission at paragraph 17 of the respondent's submissions that multiple stressors are relied upon by the appellant, the stressors identified at paragraph 7 above are the stressors relied upon by the appellant.  The respondent appears to have misapprehended various categories of concerns raised by the appellant as "the stressors".  To the contrary, they are merely evidence to support the proposition that the appellant was concerned about patient care and that no steps were taken to rectify or otherwise alleviate the appellant's concerns.  (my emphasis)
  1. The respondent, in its submissions, has addressed the various categories of issues that arose giving rise to the appellant's patient care concerns.  However, nowhere in its submissions does it suggest that steps were taken to reassure the appellant that despite her concerns the patients were receiving appropriate care. 

 . . .

Evidence - credibility and admissibility

 . . .

 

  1. The respondent led no evidence that contradicted the appellant's evidence as to her ongoing concerns about patient safety or indeed any of the issues that led to her developing those concerns.
  1. Appendix A* summarises the evidence as to the issues the appellant asserts gave rise to the stress she experienced (*Note:  I have not considered the content of the Appendix - see extract immediately below - for reasons which are set out in paragraph [160] below.)

 Appendix A - summary of evidence of the issues (extract only - 3 of 25 in total)

 

Allegation

Evidence in support

Respondent's evidence

Clinical issues reported to Prescare as not meeting the appropriate clinical standards*

1

Failure to implement and review care plans as required by clinical standards*

Appellant - T1-17: L5 - T1-20: L5, T1-189: L35 (sic)

Exhibit 1 - 23/07/15, 28/07/15

Exhibit 4

Exhibit 5

Exhibit 14

Email from Katie Davis 20/11/15

No evidence led to the contrary

Evidence of failure to deal with the issues

8

Failure to implement and review care plans as required by clinical standards*

Appellant: T2-16: L4040 (sic)

Exhibit - 10/08/15

No evidence led to the contrary

Exacerbating factors

  1.  

Advising the appellant that disciplinary proceedings were being taken against her when no such disciplinary proceedings existed

Appellant: T1-76: L10-L45

Exhibit 1 - 6/10/15

No evidence led to the contrary

(*Note:  No "clinical standards" were tendered.)

Appellant's evidence as to stressors

  1. The appellant was not cross-examined or in any way challenged* as to her evidence as to the stressors. (*Note: This statement is clearly incorrect.  The Appellant was cross-examined at length.)
  1. The appellant's evidence was that at no stage did Murnane or Andersen come to her with a resolution for her concerns with the care plans, pressure sores, and staffing levels.
  1. At no point in her time as the clinical care coordinator (sic) at Groundwater did the appellant feel that she had sufficient staff to safely care for the aged residents and she remained worried about the care they were receiving and the prospect of disciplinary action* as a result of the poor care being provided. (*Note: this aspect of the submission must refer to the Appellant's alleged concern for her professional registration (see item 23, immediately below).  This is because she did not mention the prospect of "disciplinary action", as such, during her evidence.)
  1. The Appellant's evidence was as follows:
  1. the fact that a lot of the care plans that were in place for residents were not current and did not reflect the resident's care needs caused her concern for her professional registration;
  2. in the time she remained working at Groundwater, the appellant never felt the care plans and pressure sores were being appropriately managed which caused her stress about her ability to care for the aged care residents and concerns for her registration;
  3. the failure of Murnane to address serious performance issues with staff when raised by her made her feel disempowered in that it compromised her ability to safely provide care for the residents of the facility;
  4. the failure of Murnane to take any action against Godfrey in respect to a failure to administer medication and sleeping whilst on night duty caused her concerns for her registration as a nurse;
  5. the failure of Murnane to appropriately deal with staff unethically requesting deceased patient's possessions made her feel that she had no ability to provide safe care to the patients in her (sic) facility as she was being overruled in respect to unethical conduct;
  6. the failure to deal with Mr Godfrey failing to perform wound care made her concerned in respect of her ability to provide safe care for the residents in the facility and in respect of ramifications on her nursing registration;
  7. the state of the dementia ward carpets concerned the appellant due to issues with contamination and infection.

Findings

  1. The Court (sic) can be satisfied that the appellant's injury arose out of the failure of PresCare to take steps to rectify the patient care concerns of the appellant, or otherwise reassure the appellant that despite her concerns the patients were receiving appropriate care.
  1. No evidence was led by the respondent that PresCare in any way rectified the issues the appellant had identified as compromising patient safety or otherwise assured the appellant that her concerns were unfounded.
  1. It cannot be said to be reasonable management action that PresCare, who (sic) was aware that the appellant was concerned about the deficits in patient care*, failed in any way (to) take steps to reassure the appellant that the patients under her care were safe. (Note: the Appellant did not state during her evidence, or in her submissions, how the employer allegedly became aware that the she was concerned about deficits in patient care and/or that she expected to be reassured that the patients under her care were safe.)

Respondent's Reply submissions

  1. [152]
    The Respondent referred to its outline of submissions in which it contended that it was difficult to discern how management action was said to be unreasonable in relation to the evidence given by the Appellant. It then went on to state "the Appellant's case is no clearer, and is now even more confusing, when regard is had to her outline of submissions".
  1. [153]
    Under the heading "What is the Appellant's case?", the Respondent:
  • referred to the President's decision in Yousif v Workers' Compensation Regulator (Yousif)[7] as authority for the proposition that a Statement of Stressors "sets the boundaries" of a workers' compensation appeal, and that "a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues". (paragraph 3 of Reply submissions);
  • noted that the Appellant gave evidence consistent with the alleged (multiple) stressors contained in her Amended SOFAC. (paragraph 4);
  • noted that the Appellant had set out part of Dr Apel's report which stated that the key stressors at work "are multiple issues" and management did not respond to various issues leading to adverse clinical care.  These particular issues were junior staff providing alcohol to patients and management of pressure sores.
  • submitted:

"Curiously, and contrary to Yousif, the Appellant now contends that her case is that as outlined in the evidence (given in cross examination) of Dr Apel that: "…(And) the impression I had (of the Appellant) was a fairly responsible individual who was stressed at the - the volume of issues she had to face in this role". (paragraph 5);

  • highlighted that the above evidence of Dr Apel needed to be placed in context, in that it was responsive to a question from the Respondent in respect to the multiple stressors referred to in his report where he responded (immediately prior to the above quote of his evidence) "… The issue is not so much the incident.  It's the response of the person to the incident. (And the impression …)." (paragraph 6);
  • submitted:

"Presumably, when paragraphs 6 and 7 of the appellant's written submissions are read together, it would seem that the appellant is now contending that her case is that of issues of junior staff providing alcohol to patients and management of pressure sores and the alleged lack of management action to deal with such issues.  With respect, that must be the appellant's position because no attempt has been made in the written outline to address (in a meaningful way or at all) each of the stressors as identified by the respondent in its outline (of submissions) and set out in the (Appellant's) contentions". (paragraph 7); and

  • highlighted that the Appellant's contentions did not allege, is a stressor, that the events at Groundwater caused the Appellant to be stressed about the "prospect of disciplinary action as a result of the poor care being provided" or "concerns for her registration as a nurse" or "ramifications on her nursing registration".  "It follows therefore that any evidence on this topic is irrelevant to the Commission's determination". (paragraph 11).
  1. [154]
    The Respondent's submissions concerning the nature of the Appellant's case concluded as follows:

"14. Presumably, the reference to 'stressors' in the appellant's written submissions are the stressors specifically set out in the appellant's contentions (i.e. the Amended SOFAC).  This submission is plainly at odds with the appellant's submissions as set out at paragraph 5 above (summarised in the third dot point of this paragraph [153], immediately above).  The inconsistent stance taken by the appellant fully demonstrates that the appellant legally misunderstands her case and the nature of the review before the Commission.

  1. Finally, the appellant seeks the Commission to make a number of findings. Contrary to the submissions made by the Appellant, on her own evidence she rectified a number of deficiencies in the care of patients.  It is therefore not apparent why management had to reassure her that the patients under her care were safe and a failure to do so was unreasonable management action".

Analysis of the evidence and submissions

Introductory comments

  1. [155]
    Before turning to the substance of my decision, it is necessary to say several things about the evidence given by Ms Davis as well as the apparent attempt to rely on the contents of documents filed on her behalf, as well as exhibits tendered, as "evidence" in support of her Appeal.
  1. [156]
    Firstly, as I mentioned in paragraph [11], the content of the Amended SOFAC is not evidence.  Putting to one side the Contentions aspect, it is a document which is designed to set out the facts which a party (in this case, Ms Davis) intends to establish by evidence led through that party's witnesses, as well as through the cross-examination of the other party's witnesses.
  1. [157]
    Secondly, the entries that the Appellant has written in her diary are not evidence of the truth of the matters recorded therein.  Each entry is simply to be treated as a record which the Appellant wrote at, or around, the time a particular event or conversation occurred, and its existence would normally be supportive of a submission that the direct evidence given by the Appellant should be accepted because it matches the contemporaneous diary entry.
  1. [158]
    Thirdly, because the content of individual diary entries was generally used as a prompt to the Appellant, such that she might recall additional detail about a particular event or incident, or for her to demonstrate that evidence she had given was accurate - because it reflected what was written in her diary - I have generally not looked at the content of a diary entry.  As I said immediately above, a diary entry is not "evidence" by, and of, itself.
  1. [159]
    Fourthly, I record my agreement with the Respondent's submissions about the questionable provenance of some of the Appellant's diary entries and how reliable they are.  This is because the Appellant's evidence (under cross-examination at pages T3-47 to T3-50) about when she would make entries in her diary was very difficult to follow and, from my perspective, unsatisfactory.  From those parts of her evidence I could follow, I gained the impression that entries might have been made days, and even weeks, after an event occurred by reference to handwritten notes, a "running sheet", the occasional file note and the Appellant's recollections of the event at a later date - when she would "top up" an entry.  As such, some of the entries recorded on a particular date in the diary might not have actually occurred on that date or, if they did, they might not have been entered on that date.  Further, some entries about a matter, said to have occurred on a given date and supposedly recorded on or around that same date, included reference to events relating to that matter which occurred later.
  1. [160]
    Finally, I need to record that I have not considered the contents of Appendix A to the Appellant's submissions because - as the extract at item 19 of paragraph [151] above shows - what is to be made of the transcript references and the exhibits referred to is left to the reader to decide.  In that regard, it is not for either the Respondent or me to try to extract the point that the Appellant seeks to make through the documents referred to or how they support the merits of her appeal.  That is the Appellant's role.

The nature of the Appellant's evidence

  1. [161]
    To a large extent, the Appellant's evidence was very general in nature and lacking in detail.  Her responses to questions asked of her rarely covered more than several sentences and did not flesh out the matters said to be of concern to her.  Further, as the Respondent noted in its submissions, much of her evidence appeared to be scripted.  An example of both these issues appears early in the Appellant's evidence when she was being asked questions by Ms Sorbello relating to her concerns about wound care (T119):

Question: ... did you raise any of the issues in relation to wound care with anyone?Answer: I did.

Question: Do you recall when you first raised any issues about the deficits that you identified with somebody?Answer: Definitely in the first week.

Question: Do you recall who you had a conversation with about that?Answer: Both Barry and Melinda.

Question: Sorry, I suggested to you that it was a conversation.Answer: Sorry?

Question: Was it a conversation?Answer: Yes.

Question: Was there any other way that you communicated your concerns to them?Answer: By email*. 

(*Note: An email dated 23 July 2015, tendered at around the time these questions were asked, does not say anything about any "concerns" the Appellant might have had. It is the email to staff at Groundwater, cc to Ms Andersen and Ms Hawken, (Exhibit 4) referred to in paragraph [23] of this decision, where Ms Davis implemented the two-hourly turn requirement for patients with pressure injuries.)

Question: Firstly, can you recall a conversation that you had with Barry on 23 July 2015?Answer: Not really.

Question: Do you recall making a note in your diary about a conversation that you had with Barry? Would you turn then to 23 July 2015.  Is that a note that you made about a conversation?Answer: It is. Yes.

Question: Could you read, for the Commission, please, what that note records?Answer: Advised Barry concerns regarding wound care, care plans, all overdue. [indistinct], Mel and Kath last did all pre-accred in March. Staffing concerns, ratios. Barry, "Come to Groundwater, see if you survive despite the care".

Question: Okay. Firstly, the note there has that you raised concerns with him about wound care. Do you recall now what was said to Barry about wound care?Answer: I - I do. The - the - like the volume of the pressure injuries, that they weren't being managed.

Question: Do you recall the nature of conversation about care plans?Answer: Yes.

Question: And what was that?Answer: That they weren't up-to-date. They were overdue. They had last been done in March.

  1. [162]
    On a number of occasions during the course of her evidence (at least seven on my count), the Appellant said that she "elevated" her concerns about various topics to either Mr Murnane or Ms Andersen, or to both of them, by email, by telephone or in person.
  1. [163]
    However, as can be seen in my detailed summary of her evidence under each topic heading (above), the Appellant did not (except for one occasion*) go into any detail about how her alleged concerns were communicated to Mr Murnane and/or Ms Andersen in such a manner that they would have known, or should have known, firstly, that she was concerned about the particular topic and, secondly, that she expected to be reassured that her concerns were being addressed and/or that the residents were receiving appropriate care. (*Note: This was her email to Ms Andersen in which she complained about not being informed about Ms Kirby bringing home brewed spirits into the facility.)
  1. [164]
    For instance: none of the emails contain any references to earlier emails, telephone discussions or face-to-face discussions where matters raised by the Appellant had either not been addressed or not responded to. For example, there were no words like: "I refer to our telephone discussion on 31 August 2015 and my subsequent email to you of 2 September 2015 where I expressed my growing concern about the matter of Mr Dover's failure to dispense medications to patients in the dementia ward on a timely basis, or at all. To date I have not had a response from you which informs me whether you plan to take any disciplinary action against Mr Dover and/or notify the Department of what has transpired. As the Care Coordinator, I am the person who will be held accountable…".
  1. [165]
    In most cases, the emails the Appellant sent to Mr Murnane and/or Ms Andersen simply provided a factual report about a given event (see, for example, her email to Mr Murnane about Mr Dover in paragraph [65] above).  In other cases, the recipient would have found it extremely difficult to appreciate that the appellant had serious concerns about the matter (see, for example, her email to Mr Murnane, Ms Andersen and Ms Hawken about the deceased resident's possessions, in paragraph [111] above).
  1. [166]
    In terms of face-to-face and telephone discussions, there was very little evidence given about their nature or content. By way of example: Ms Davis's evidence about the conversation she had with Mr Murnane on 23 July 2015 (see paragraphs [24] and [161] above), simply entailed her reading the entry she had written in her diary under that date, vis: "Advised Barry concerns regarding wound care, care plans, all overdue. Can see Mel and Kath last did all pre-accred in March. Staffing concerns, ratios …".  With respect, what the Appellant had written in her diary told me nothing about the extent of the conversation or what it was that she actually conveyed to Mr Murnane, or his response.
  1. [167]
    Similar examples of "elevating" a matter, without any detail as to the substance of any discussions, appear at paragraphs [38], [48], [72], [88] and [108], above.

The passing of Mr Murnane

  1. [168]
    The Appellant was critical of the failure of the Respondent to provide evidence that Mr Murnane passed away so suddenly that he was unable to provide a statement as to the issues in contention, stating that a mere assertion to that effect by Counsel from the bar table was not evidence of that fact.[8]  In the absence of such evidence, I was urged to accept the Appellant's uncontested evidence as to her ongoing concerns about patient safety "or any of the issues that led her to developing those concerns".
  1. [169]
    By way of response, the Respondent noted that no objection was taken by the Appellant's Counsel when the Commission was informed of Mr Murnane's passing early on Day 1 of the proceedings.  The Respondent also said it was self-evident that if it was in a position to provide evidence from Mr Murnane, in an admissible form, that it would have sought to do so pursuant to s 92(2)(a) of the Evidence Act 1977 (Qld).
  1. [170]
    For my part, I found it somewhat unusual that the Appellant only voiced concern about this issue in her final submissions when it was too late to address the matter.  The appropriate time to have done so was when Mr McLeod informed me of Mr Murnane's sudden passing, early on the first day of proceedings (at T1-10).
  1. [171]
    In any event, I am left to decide this Appeal based upon the evidence before me, which has to be assessed on its merits - not just accepted because the Appellant's "evidence" was allegedly not contradicted - in light of the provisions of s 32 of the Act.

The nature of the Appellant's case

  1. [172]
    Like the Respondent, I found it difficult to appreciate the nature of the Appellant's case. I put this down to confusion on the Appellant's part about the purpose of a Statement of Facts and Contentions, particularly the role that Contentions have in highlighting the alleged cause of a psychiatric or psychological condition and why it should be accepted as a compensable injury.  However, in this case, the alleged cause of Ms Davis's psychiatric or psychological condition has been somewhat difficult to grasp.
  1. [173]
    The Appellant's Amended SOFAC (see paragraph [10] above) states, under the heading "Background":
  1. At no time during the time that the appellant was employed at Groundwater did the employer, through its servants or agents, take any action to reassure the appellant that the concerns she had raised where (sic) either being attended to or alternatively, despite those concerns the residents of Groundwater were being cared for appropriately and safely.
  1. The actions of the employer in failing to liaise with the appellant about her concerns about patient care was not reasonable management action.
  1. [174]
    It then goes on to state, under the heading "Contentions":
  1. The failure of the employer to take steps to rectify the patient care concerns of the appellant, or otherwise reassure the appellant that despite her concerns the patients were being appropriately cared for was unreasonable management action.
  1. [175]
    When the above three paragraphs of the Amended SOFAC are considered together, it seems that the Appellant's contentions are that:
  1. her psychiatric or psychological injury arose out of the failure of the employer to take steps to rectify her patient care concerns or otherwise reassure her that, despite her concerns, the patients were being appropriately cared for *; and
  1. the failure of the employer to take steps to rectify her patient care concerns or otherwise reassure her that, despite her concerns, the patients were being appropriately cared for was unreasonable management action.

(*Note:  This wording is virtually identical to that contained in the Appellant's closing submissions, at items 8 and 26, recorded in paragraph [151] above.)

  1. [176]
    On several occasions during the proceedings Ms Sorbello made submissions about the nature of the Appellant's case as a way of responding to objections raised by Mr McLeod about the type of evidence being led, as follows:
  • (T1-32) - In respect of the evidence about - the particular evidence or the minutiae of the evidence about staffing levels, the purpose of the evidence is simply to put before the Commission that there was an ongoing issue that continued to be escalated to superiors about staffing levels.  And that's evident from the statement (i.e. the Appellant's statement of 14 June 2016) where the appellant says that the staffing issue was, in effect, a running battle up until January 2016*; and
  • (T4-10) - It's never been the case that the appellant asserts that the systems that were in place or the decisions made by management were anything that caused her stress.  What she says caused her stress was the fact that she was in this position where she wasn't being told anything that was going on and she was in a position where she was concerned about what was going on.  That's very clear from the (Amended) statement of facts, issues and contentions.

(*Note: Other than the evidence about staffing levels recorded above under the Appellant's topic headings, no evidence about staffing levels being an on-going issue up until January 2016 was given by the Appellant.)

  1. [177]
    At the time each of the above submissions was made, it appeared that the evidence about which Ms Sorbello's submission was directed was designed to support the contention of the Appellant about the cause of her injury, as recorded in paragraph [175] above, and the unreasonableness of the associated management action or, in this case, inaction.
  1. [178]
    However, in retrospect, the admission recorded in the first sentence of the second extract in paragraph [176] at T4-10 - that it was not the Appellant's case that decisions made by management were anything that caused her stress - is inconsistent with the case ultimately presented by the Appellant, where several of the topics she identified as "concerns" involved decisions taken by management with which she disagreed, namely: A 4 - The dementia ward carpet and A 9 - Deceased resident's possessions.
  1. [179]
    Further, the Appellant introduced a completely new contention in her closing submissions, as highlighted in bold in the following extract:
  1. Dr Apel … opines:

 The key stressors are multiple issues at her place of work, where she felt responsible for matters that management did not respond to, leading to adverse clinical care.  These particular issues are of junior staff providing alcohol to patients and issues of the management of pressure sores this goes against her clinical responsibility.

 I would see employment as a significant contributing factor…

  1. Under cross-examination Dr Apel noted "the impression I had was a fairly responsible individual who was stressed at the - the volume of issues she had to face in this role".
  1. Consistent with the opinion of Dr Apel, the appellant alleges that her injury arose out of the failure of PresCare to take steps to rectify the patient care concerns of the appellant or otherwise reassure the appellant that despite her concerns the patients were receiving appropriate care.
  1. It is the failure to address these issues that the appellant contends was not reasonable management action and therefore her injury is not excluded from the Act.
  1. Contrary to the submission at paragraph 17 of the respondent's submissions that multiple stressors are relied upon by the appellant, the stressors identified in paragraph 7 above are the stressors relied upon by the appellant. The respondent appears to have misapprehended various categories of concerns raised by the appellant as "the stressors". To the contrary, they are merely evidence to support the proposition that the appellant was concerned about patient care and that no steps were taken to rectify or otherwise alleviate the appellant's concerns. (Note: The first and third sentences seem to cut across each other.)

. . .

Consideration and Conclusion

Can the new contention be considered?

  1. [180]
    In Yousif[9], President Martin said:

[10] The Commissioner relied, in part, on the Statement of Facts and Contentions filed by the appellant. The role of such Statements was the subject of submissions and it will assist if their status is examined before the grounds of appeal are considered.

[11] In appeals brought to the Commission under the Act, it was once the standard practice for a direction to be given requiring the appellant to file and serve a Statement of Stressors.  It is now the common practice for a direction to be given requiring the parties to file and serve Statements of Facts and Contentions …

[12] In Blackwood v Adams[10] I referred to Statements of Stressors as setting "the boundaries of the application".  More recently in Carlton v Blackwood[11] I said:

"An appellant's case has to be known before the hearing starts.  The Commission cannot allow a case to 'evolve' and place the respondent in the position of having to contend with the shifting sands of an undefined argument.  If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions.  The Commission can then decide whether or not to allow such an amendment".

[13] A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are.  The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts.  But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases.  This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal.  It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party's case and, if an admission is made, to rely on that admission.

[15] It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions.  It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute …  Subject always to the Commission's power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.

(my emphasis in both instances)

  1. [181]
    On my reading of the President's decision in Yousif[12], the Appellant is limited to the contention, as originally advanced at paragraph 13 in her Amended SOFAC, that her psychiatric or psychological injury is attributable to: "the failure of the employer to take steps to rectify the patient care concerns of the appellant, or otherwise reassure the appellant that despite her concerns the patients were receiving  appropriate care".
  1. [182]
    Further, on the basis of the admission by her Counsel, Ms Sorbello at T4-10 (see paragraph [176] above), that decisions made by management were not matters that caused Ms Davis any stress, the Appellant is precluded from attempting to rely upon the two topics of concern mentioned at paragraph [178] above, namely A 4 - The dementia ward carpet and A 9 - The resident's possessions, as contributory to the causation of her psychiatric or psychological condition.
  1. [183]
    Irrespective of that situation, the appellant simply had a different view than Mr Murnane about how each of those matters should have been handled.  In the absence of any evidence to suggest that he erred in the way he dealt with each matter - such as a "Notice to Rectify" (however called) from the Department in the case of the carpet, or a copy of the policies and procedures said to have been breached in the case of the resident's possessions - there is no basis upon which I could find that his decisions involved unreasonable management action.
  1. [184]
    With respect to the Appellant's legal representatives, the new contention (referenced at items 7 and 10 in paragraph [179] above) appears to be an afterthought to try to take advantage of an opinion Dr Apel expressed in cross-examination.  However, not only is the contention not able to be enlarged for reasons spelt out in Yousif[13], the point sought to be advanced does not sit comfortably with the other parts of the Appellant's submissions which precede it or follow it, which, in the main (except for the Appellant's concerns about the possible loss of her registration) address the contention originally advanced.
  1. [185]
    Finally, although I have not treated it as an additional contention, the repeated questions by Ms Sorbello to the Appellant about whether certain events were a source of concern and/or of stress for her in connection with her professional registration as a nurse, as well as the numerous references to that issue in her closing submissions (see item 23 in paragraph [151] above), led me to believe at one stage that such point might have been argued to be a further contributory cause of the development of the Appellant's psychiatric or psychological condition.  However, for the reasons advanced by President Martin in Yousif[14], such "contention", if it was one, cannot be considered.
  1. [186]
    In any event, the Appellant provided no evidence - such as a witness from AHPRA or, at least, some published documentation from that body which demonstrated the types of situations where a Registered Nurse might lose their registration - to underpin her concerns. All that I have is her personal opinion about the issue.  That is insufficient.

The requirements of s 32 of the Act

  1. [187]
    In order to succeed in her Appeal, Ms Davis needs to establish the following:
  • she was a "worker" within the meaning of the Act;
  • she suffered a personal injury;
  • the injury arose out of, or in the course of, her employment by PresCare;
  • her employment was the major significant contributing factor to the injury; and
  • her psychiatric or psychological disorder is not withdrawn from the definition of "injury" by the operation of s 32(5) of the Act.

(Note: The Respondent did not contest the fact that the Appellant satisfied each of the first four criteria.)

  1. [188]
    Relevantly, as noted in paragraph [3] above, s 32(5) states that an "injury" does not include a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.
  1. [189]
    As such, it is necessary to consider whether the events that caused the Appellant's psychiatric or psychological condition involved management action and, if they did, whether the management action was reasonable and taken in a reasonable way.

Alleged failure to rectify patient care concerns of the Appellant

  1. [190]
    Importantly, the Appellant contends that her psychiatric or psychological condition arose out of very specific circumstances, namely: out of the failure of the employer to take steps to rectify her patient care concerns or otherwise reassure her that, despite her concerns, the patients were being appropriately cared for.
  1. [191]
    In that respect, I could not identify, and the Appellant did not indicate in her closing submissions, how any of the six topics of concern to her identified under the heading "Bullying and Treatment of Staff" in paragraph [10] above, impacted patient care or safety and/or caused her to have concerns about her ability to provide care to the residents. These items were:
  • B 1 - Non-existent disciplinary investigation;
  • B 2 - Access to office;
  • B 3 - The restraint forms;
  • B 4 - Andersen calling the claimant a liar;
  • B 5 - The orange form checklist; and
  • B 6 - The Appellant's password.
  1. [192]
    In addition to those six topics, I also cannot see how Ms Andersen's contact with Ms Davis about the resident returning to Groundwater from hospital (see paragraphs [84] to [86]) and phoning the Appellant while she was on leave (see paragraphs [116] to [120]) could possibly have impacted resident care or safety and/or caused her to have concerns about her ability to provide care to the residents.
  1. [193]
    As such, given the Appellant's precisely framed contention as to the cause of her psychiatric or psychological condition, I do not propose to give any further consideration to the two topics mentioned in paragraphs [178] and [182], the 6 topics mentioned in paragraph [191] or the two topics mentioned in paragraph [192], as having been contributory to the development of her injury.
  1. [194]
    That leaves eight topics to be considered in terms of their possible contribution to the development of the Appellant's psychiatric or psychological condition on the grounds contended, which I shall discuss in the order in which they were listed in her Amended SOFAC.  In doing so, I do not propose to restate all the evidence given about each topic or my comments about the nature of the Appellant's evidence.  Rather, I propose to comment on the degree to which the evidence supports, or does not support, the Appellant's contention as to the cause of her psychiatric or psychological condition and whether the associated management action was reasonable and undertaken in a reasonable way.

A 1 - Care plans and pressure sores

  1. [195]
    After commencing employment at Groundwater, the Appellant conducted a review of the residents and their records and established that the individual care plans were out of date and that a number of residents had pressure wounds.  Aided by Ms Doran, whose assistance she had requested from Mr Murnane, she brought the care plans up to date and set procedures in place to monitor, and address, the pressure wounds.  This included the 2/24 PAC regime.  In addition, she arranged for staff to be provided with refresher training about pressure injury prevention and management.
  1. [196]
    However, the Appellant found that the registered staff were not completing their assigned tasks concerning the updating of care plans and the management of pressure wounds as a result of which she would complete those tasks herself.  Importantly, in terms of the Appellant's contention concerning the cause of her injury, this was, on her own admission, against the instruction of Ms Andersen (see paragraphs [32] and [39] above).
  1. [197]
    Notwithstanding the apparent lack of assistance by the registered staff in updating care plans and the management of pressure wounds, it is apparent from the Appellant's own evidence that she undertook these tasks herself and ensured that both issues were being managed.  In doing this, she did not suggest that she was overworked and/or unable to cope.
  1. [198]
    Importantly, except for referring to an entry in her diary in which she recorded she had "again" raised concerns regarding care plans and wound management with Mr Murnane on 10 August 2015, the Appellant did not give any specific evidence about any complaints she allegedly made to Mr Murnane and/or Ms Andersen about her concerns regarding updating of care plans and the management of pressure wounds and/or her concern about deficiencies in patient care in those two areas. (Note: I do not regard the Appellant's email of 23 July 2015, in which she implemented the 2/24 PAC regime, as either a complaint or an expression of concern.)
  1. [199]
    Given this situation, it is difficult to discern what the Appellant's precise contention is that makes good her argument that management action was somehow unreasonable.  As the Respondent submitted:

"The position is a simple one, consistent with the appellant's duties as clinical care coordinator (sic), she identified problems and remedied them. That was the precise role she was employed to undertake. Nothing management did after being advised of the fact certain residents were found to have pressure sores warrants any finding that the actions taken were unreasonable.".

A 2 - Unsafe lifting

  1. [200]
    In light of the Appellant's evidence on this matter I am at a loss to understand why it has been included as a topic of concern to her and, allegedly, contributory to the development of her psychiatric or psychological condition because of the employer's alleged failure to rectify her concerns.
  1. [201]
    Within about a week of having commenced at Groundwater, Ms Davis identified that some staff were physically lifting residents rather than using a hoist.  After speaking to both Mr Murnane and Ms Andersen - who told her that the staff had been shown how to lift safely so they knew how to do it - the Appellant arranged with the WHSO to conduct "refresher training" for the staff. After this training was provided, around 30 July 2015, there were no further issues with unsafe lifting.
  1. [202]
    Any concern that the Appellant had about resident care and/or safety should have been allayed as soon as the refresher training was provided.  As such, what is contended by the Appellant to amount to a failure on the part of the employer to address her concern about unsafe lifting is not readily apparent - and was not canvassed in her submissions.

A 3 - Staffing levels

  1. [203]
    Although the Appellant gave evidence that she had been approached by a staff member on 29 July 2015 about staffing levels, that the same topic was raised at a staff meeting on 11 November 2015, and that from time to time she had mentioned the topic of "staffing" with Mr Murnane (including on 11 November), no other information about how she progressed any concerns was provided during her evidence. Indeed, and somewhat surprisingly, she said that she could not recall whether she followed the matter up with Mr Murnane after she allegedly spoke to him by telephone following the staff meeting on 11 November 2015.
  1. [204]
    Importantly, from my perspective, Ms Davis did not provide any evidence about having made some type of submission to Mr Murnane (either orally or in writing) in which she set out her concerns and/or how she thought the matter should be addressed. Similarly, other than having said that she raised the topic with Mr Murnane from time to time, she did not provide any evidence as to the nature of her discussions with him or his responses.
  1. [205]
    Given the lack of any such evidence, it is impossible to make any finding that Mr Murnane did not consider any of her concerns about staffing levels.  In this respect, he was under no obligation to hire new staff simply because the Appellant and some other staff members complained.
  1. [206]
    Accordingly, and noting that the Appellant agreed that complaints about staffing levels were a fairly common occurrence in aged care facilities, there is simply no basis for me to conclude that the staffing levels at Groundwater were not at appropriate levels.  As such, it follows that the employer's decisions concerning staffing levels did not involve unreasonable management action taken in an unreasonable way.

A 5 - Carer, Jeffrey Dover

  1. [207]
    As was the case with several of the Appellant's topics of concern, it is difficult to understand how the management action, or alleged inaction, in respect of Mr Dover is said to be unreasonable.
  1. [208]
    During cross-examination, Ms Davis said that once Mr Dover's competency to administer medication was revoked, by her, on 1 September 2015 the issue she had about his administration of medications was resolved. As such, given that Ms Andersen and Mr Murnane had authorised the appellant to revoke Mr Dover's medication competency, at her request, I cannot understand how there could possibly be any suggestion of failure to act on her concerns (i.e. unreasonable management action) on their part.
  1. [209]
    Further, while the Appellant expressed the view she did not agree with Ms Andersen's comments (on 2 September 2015) to Mr Dover about being able to re-sit his competency tests, her own evidence-in-chief, confirmed by her email to Ms Andersen (Exhibit 15), was to the effect that she told him the previous day (see paragraph [62] above) that his medication competency was revoked until such time as he could attend further training and be deemed competent.
  1. [210]
    In relation to the Appellant's view that Mr Dover should have been performance managed and issued warnings, the fact that her superior, Ms Andersen, did not hold the same view does not lead to a finding that Ms Andersen's decisions in connection with the matter constituted unreasonable management action.  It was a simple difference of view, with Ms Andersen's opinion prevailing. There was nothing unreasonable about her decision.
  1. [211]
    When a further incident occurred on 7 October 2015 (the exact nature of which is unclear - see paragraph [65]) the Appellant sent an email to Mr Murnane about the matter.  He responded only 29 minutes later saying that he would have "a chat" with Mr Dover on his next rostered shift.  However, the Appellant did not know whether Mr Murnane spoke to Mr Dover and did not give any evidence to the effect that she had followed the matter up.
  1. [212]
    Consequently, in light of the state of the evidence on this latter point, I am unable to reach any conclusion about whether Mr Murnane's handling of the 7 October 2015 incident (which appears to have related to Mr Dover's failure to effect a timely change of an incontinence pad) involved any failure on his part to deal with Ms Davis's concern.  In saying that, he certainly could not be criticised about any delay in informing the Appellant of his intentions to speak with Mr Dover.

A 6 - Further medication issues

  1. [213]
    Although Ms Davis clearly had concerns about Mr Godfrey's performance as a Registered Nurse (on probation), there is a distinct lack of hard evidence that Ms Andersen and/or Mr Murnane failed to do anything to address her concerns.
  1. [214]
    In relation to the first matter she raised, Mr Godfrey's failure to administer medications to residents in the dementia wing, that matter was dealt with on 15 September 2015, i.e. within a few days of her raising it, when Ms Hawken revoked his medication competency and told him he was required to undertake further training.  Thereafter, on Ms Andersen's unchallenged evidence, either she or Ms Hawken accompanied Mr Dover on medication rounds and he was not allowed to administer them unless they were present.
  1. [215]
    Importantly, the Appellant did not produce any evidence which established that the missing of medications by a RN was reportable to AHPRA.  As such, the evidence is that Mr Murnane held the view that it was not reportable whereas Ms Davis held a contrary view. In such situation, as the Appellant reluctantly conceded during cross-examination, the decision whether to report the matter to AHPRA, or not, fell to Mr Murnane.  As there is nothing before me which could lead to a finding that his decision was wrong, I am unable to conclude that it involved unreasonable management action.
  1. [216]
    In terms of the 29 October 2015 incident, all I have before me is that the Appellant emailed Ms Andersen to report that Mr Godfrey did not complete the 8.00 am medication round until 10.45 am and that Ms Andersen responded one hour and 40 minutes later with a cryptic response about bringing him in for a chat about medication management and clinical management and to inform him that his progress was being monitored, "and at this point it is not (a) positive outcome".
  1. [217]
    The Appellant's 2 November 2015 email states "As per instruction, please be advised the tasks allocated to Russell for over the weekend were not completed…".  While the matter was not canvassed during Ms Davis's evidence, the first three words of the email suggest the Appellant had been instructed to report any issues concerning Mr Godfrey's performance.
  1. [218]
    Based upon the limited information I have before me, it appears that Ms Andersen and Mr Murnane were conscious of Mr Godfrey's performance issues and were monitoring his performance with the assistance of, at least, the Appellant.  In that respect, they proposed to hold a meeting with him, but the Appellant could not remember whether it occurred or not.  Relevantly, she did not report any performance issues after 2 November 2015, which was the date that Ms Andersen advised the Appellant that Mr Godfrey was to be brought in for "a chat".
  1. [219]
    Given all of the above, it seems to me that Mr Murnane and Ms Andersen were taking steps to deal with Ms Davis's concerns about Mr Godfrey's performance and, as such, while their manner of dealing with him might not have met the Appellant's expectations, that does not mean they engaged in unreasonable management action.

A 7 - Undermining resident dietary requirements

  1. [220]
    Other than what is recorded at paragraphs [72] to [74] above, the Appellant did not provide any additional information about this topic.  As it stands, the only evidence before me is that Ms Cocking sent the Appellant an email on 28 August 2015 which contained thirdhand information to the effect that Tracey, the cleaner, had purchased steak sandwiches and chips and provided them to two, possibly three, residents following which Ms Davis "elevated" the matter to Mr Murnane.  However, as with many items she gave evidence about, the Appellant did not explain how she raised this matter with Mr Murnane, what she said to him and what his reaction and/or response was.
  1. [221]
    Other than stating that Tracey had asked her on one occasion, in the presence of Mr Murnane, whether she wanted a steak sandwich - at which time he allegedly put his hands over his ears and walked away - Ms Davis did not give any evidence-in-chief that the practice continued to happen.  However, under cross-examination, the Appellant claimed that the practice of the cleaner bringing high-fat foods in for the residents continued up until the day she ceased work in January 2016.  I do not believe her.  Not only was her evidence at the time both convenient and unconvincing, there was no suggestion in her Amended SOFAC that the practice continued after she spoke to Mr Murnane on 2 September 2015.
  1. [222]
    Accordingly, I conclude that the practice of bringing high-fat foods into the facility ceased after the Appellant raised it with Mr Murnane.  As such, given that the (accepted) evidence is that the facts support the conclusion that Mr Murnane addressed the issue, it could not be said that he failed to rectify the patient care concerns of the Appellant in relation to this topic.

A 8 - Sale of home brewed spirits to residents

  1. [223]
    In light of Ms Andersen's unchallenged evidence on this matter (see paragraph [128] above), I am left to conclude that the employer did respond to the situation of Ms Kirby bringing home brewed spirits to residents once it found out about that practice.  As such, while Ms Davis was entitled to be concerned about what had gone on previously, there should have been no continuing concern on her part after 23 November 2015 because the practice had been stopped.
  1. [224]
    Further, while the Appellant appeared to believe that Ms Kirby should have been formally disciplined about the matter, it was not up to her to decide how the issue should be dealt with.  That decision fell to Ms Andersen, who appears to have given a warning to Ms Kirby that what had occurred in the past was not appropriate and that if it happened again there would be a formal disciplinary process.
  1. [225]
    In the absence of any information about the frequency with which Ms Kirby might have brought home brewed spirits into the facility and/or whether she "self-confessed" the practice to Ms Andersen, it is simply impossible to venture a view as to whether the way Ms Andersen dealt with the matter involved reasonable management action, or otherwise.  Further, the employer did not fail to take steps to rectify the patient care concerns of the Appellant, as alleged.  It addressed the inappropriate practice before Ms Davis found out about it.
  1. [226]
    That having been said, the failure of Ms Andersen to inform the Appellant that Ms Kirby had been bringing home brewed spirits into the facility, and that she had been "warned off" the practice, is of concern.  However, in the scheme of things, I would regard her failure as a blemish rather than unreasonable management action.

Cleaner leaving early

  1. [227]
    Other than this topic being an industrial relations issue - where the cleaner allegedly knocked off work early and falsified time records - I do not understand how this "concern" of the Appellant could have impacted resident care and safety and/or caused her to have concerns about her ability to provide care to the residents.  This is because, as noted at paragraph [77] above, she gave no evidence about any concerns she might have had about the cleanliness of the facility as a result of the cleaner's alleged early departure.
  1. [228]
    Further, the Appellant did not suggest that "the practice" of the cleaner leaving early on a weekend continued after she heard about it from Ms Cocking and passed that information on to Mr Murnane.  As such, there is nothing before me to establish that Mr Murnane did not take steps to address the Appellant's concerns.

Alleged failure to reassure the Appellant that the patients were being cared for

  1. [229]
    Apart from several broad statements in the Appellant's submissions to the effect that the Respondent had not suggested, in its submissions, that steps were taken to reassure the Appellant that, despite her concerns, the patients were receiving appropriate care, no argument was advanced to explain the rationale behind this aspect of the Appellant's contention and why it should be accepted.
  1. [230]
    Relevantly, and notwithstanding the Appellant's assertion to the contrary at item 8 of her closing submissions (see paragraph [151] above), the opinion of Dr Apel as to the cause of Ms Davis's injury does not support the contention advanced.  His report records: "The key stressors are multiple issues at her place of work, where she felt responsible for matters that management did not respond to, leading to adverse clinical care …".
  1. [231]
    As would be readily apparent, there is no suggestion in his opinion that the employer's alleged failure to reassure the Appellant that the patients were receiving appropriate care was a factor in her decompensation.  Similarly, there is nothing in the balance of his 11 page report, or in his oral evidence, to remotely suggest that that aspect was a factor in the development of her psychiatric or psychological condition.
  1. [232]
    This is not a case like WorkCover Queensland v Kehl (Kehl)[15], where the employer had knowledge of the idiosyncrasies of the employee and her need for matters involving her to be handled in a particular way.  Here, neither Mr Murnane nor Ms Andersen would have been aware of the Appellant's apparent desire to be reassured that her patient care concerns were being addressed and/or that the patients were receiving appropriate care, unless she informed them of that desire.  There is no evidence to suggest that she did.
  1. [233]
    Consequently, even if the employer's failure to reassure the Appellant was a contributory cause of her psychiatric or psychological condition, the employer did not engage in unreasonable management action in failing to reassure her that any patient care concerns she had were being addressed and/or that the residents were receiving appropriate care. Kehl[16]; Q-Comp v QR Limited[17].

Conclusion

  1. [234]
    In writing this decision, I have expended considerable time and effort to ensure that all of the evidence given by the Appellant (and the witnesses called by her) about the topics of concern to her was fully recorded so that I could consider it in light of the very specific contention advanced by her as to the cause of her injury, and assess it in accordance with the provisions of s 32 of the Act.
  1. [235]
    Having done so, I have determined that none of the eight topics of concern to Ms Davis considered between paragraphs [195] and [228] - which are contended to have been failures by the employer to address the patient care concerns of the Appellant - involved unreasonable management action on the part of either Ms Andersen or Mr Murnane and that none of the actions they took in relation to any matter covered by those eight topics was undertaken in an unreasonable way.
  1. [236]
    Further, for the reasons spelt out in paragraphs [229] to [233], their alleged failure to reassure the Appellant that her patient care concerns were being attended to and/or that the residents were being appropriately cared for, did not involve unreasonable management action or management action which was undertaken in an unreasonable way.
  1. [237]
    As such, Ms Davis's psychiatric or psychological condition is withdrawn from the definition of "injury" at s 32(1) of the Act by the operation of s 32(5) of the Act, in that it arose out of reasonable management action taken in a reasonable way by the employer in connection with her employment.
  1. [238]
    Consequently, for the reasons advanced above, the Appeal is dismissed.
  1. [239]
    The Appellant is to pay the Respondent's costs of, and incidental to, the Appeal.
  1. [240]
    I determine and Order accordingly.

Footnotes

[1] Eric Martin Rossmuller v Q-COMP [2010] ICQ 004, [2].

[2] Exhibit 27, Answer to Specific Questions, No 2.

[3] Exhibit 27, Answers to Specific Questions, No 16.

[4] Qantas Airways Limited v QComp (2006)181 QGIG 301.

[5] Bowers v QComp [2002] QIC 8.

[6] Blackwood v Mana [2014] ICQ 27.

[7] Yousif v Workers' Compensation Regulator [2017] ICQ 004.

[8] Cairns v Freeman & Ors [2008] NSWSC 792, 22.

[9] Yousif v Workers' Compensation Regulator [2017] ICQ 004.

[10] Blackwood v Adams [2015] ICQ 001, [19].

[11] Carlton v Blackwood [2017] ICQ 001, [18].

[12] Yousif v Workers' Compensation Regulator [2017] ICQ 004.

[13] Yousif v Workers' Compensation Regulator [2017] ICQ 004.

[14] Ibid.

[15] WorkCover Queensland v Kehl [2002] QIC 21;  170 QGIG 93, 94.

[16] Ibid

[17] Q-Comp v QR Limited [2011] ICQ 31, [10].

Close

Editorial Notes

  • Published Case Name:

    Davis v the Workers' Compensation Regulator

  • Shortened Case Name:

    Davis v the Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 116

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    13 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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