Workers' Compensation Regulator v Chapman
[2016] ICQ 11
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- Unreported Judgment
- Workers' Compensation Regulator v Chapman[2016] ICQ 11
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Workers' Compensation Regulator v Chapman[2016] ICQ 11
Workers' Compensation Regulator v Chapman[2016] ICQ 11
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 011 |
PARTIES: | SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (appellant) v GEOFFREY JOHN CHAPMAN (respondent) |
FILE NO/S: | C/2015/36 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 April 2016 |
HEARING DATE: | 25 September 2015 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the Commission found that the respondent was a worker, had suffered a psychological injury, and that the major significant contributing factor in that regard was his employment such as to bring his injury within the meaning of s 32(1) of the Workers’ Compensation and Rehabilitation Act 2003 – where the Commission considered whether s 32(5) operated to exclude Mr Chapman’s injury from the definition in s 32(1) – where the Commission found that s 32(5) applied in relation to some, but not others, of the alleged stressors said to have caused the respondent’s injury – where the appellant contends that the Commission erred in coming to that finding – whether the Commission erred in finding that certain stressors could not be causative of the respondent’s injury because the respondent had not proved that they fell outside the exclusion in s 32(5) – whether the Commission erred in finding that the respondent suffered a compensable injury because, despite some of the stressors falling within the exclusion in s 32(5), there remained other stressors not falling within that exclusion which otherwise met the requirements of s 32(1) Workers’ Compensation and Rehabilitation Act 2003, s 32(1), s 32(5) |
CASES: | Simon Blackwood (Workers’ Compensation Regulator) v Mana [2014] ICQ 27 Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010 |
APPEARANCES: | S Gray directly instructed for the appellant S Sapsford instructed by Romans & Romans Solicitors for the respondent |
- [1]Geoffrey Chapman was the General Manager – Electrical Group of Scholz Industries Pty Ltd. He was employed pursuant to a five year contract entered into after he sold the business he had built up over 38 years to Scholz Industries. As General Manager his immediate reports were the five State Managers. The primary function of his role was to create relationships and to ensure that the State Managers understood the policies and procedures with respect to sales. The Managing Director of Scholz Industries was Erik Scholz. It is the conduct of Mr Scholz and his business relationship with Mr Chapman which is at the heart of the allegations made by Mr Chapman.
- [2]In September 2014 Mr Scholz told Mr Chapman that his employment contract would not be renewed when it expired in November 2014.
- [3]Mr Chapman’s application to WorkCover was made in July 2014. He identified the nature of the injury as “psychiatric” and that it had occurred as a result of “workplace abuse and harassment” at various locations. His application was successful but the Regulator has contested that determination. In accordance with the usual directions given, Mr Chapman provided a Statement of Stressors:
From 2009 until 2012 | The Employer expected the Appellant to be available for lengthy meetings outside business hours. No notice was given. The Employer cancelled meetings with little or no notice . | |
From 2009 until mid-February 2014 | The Employer did not share the outcome of client meetings with the Appellant causing the Appellant to look unprepared or disconnected when next he met with the client. | |
In or about 14 May 2013 | The Employer held the Appellant responsible for employees no longer reporting to him after unilaterally instigating a change in reporting lines, without consultation with the Appellant. | |
4. | In or about July 2013 | The Employer directed the Appellant to terminate the employment of a subordinate for discriminatory reasons, namely that the subordinate was fat and because he was a smoker. |
In or about 17 October 2013 | The Employer unilaterally changed the Appellant's employment contract by amending the composition of an annual, non-discretionary bonus payment. The amendment reduced the bonus payment by increasing the deductible component of sales commissions from 5% to 11.5%. | |
On or about 14 January 2014 | The Employer failed to provide necessary budget information to the Appellant so that he could plan realistic targets and outcomes for a presentation at a strategy meeting on 17 January 2014 and then criticized the Appellant's presentation delivered at the meeting as ‘lacking any detail or tangible initiatives’. The Employer classified this feedback as an official warning. | |
On 12 February 2014 | The Employer by its General Manager said to the Appellant, “fuck you pal” in an aggressive, loud and hostile tone in a gathering of senior managers of the Employer in Perth discussing workplace incentives . | |
On 13 February 2014 | The Employer raised performance issues with the Appellant by email at 12:44 am, with a demand for a 7:00 am breakfast meeting to discuss those performance issues where the Employer did not attend that 7:00 am breakfast meeting. |
- [4]At the time relevant to this application, s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) provided:
“32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if—
- (a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
…
- (5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
- (a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- (b)the worker’s expectation or perception of reasonable management action being taken against the worker;
- (c)action by the Regulator or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way—
• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
• a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.”
- [5]The Commissioner found that Mr Chapman was a “worker”, that he had suffered a personal injury of a psychiatric kind and that it had arisen out of, or in the course of, his employment. The Commissioner then considered the next issue, which arises from s 32(1)(b), namely, whether, for that disorder, employment was the major significant contributing factor. After considering the evidence concerning the nature of the disorder, the evidence given by Mr Chapman, and the medical evidence, he held that the injury was one in which employment was the major significant contributing factor.
- [6]After arriving at that point, the Commissioner went on to consider whether s 32(5) operated to exclude Mr Chapman’s injury from the definition in s 32(1). It is the analysis that follows that gives rise to the grounds of appeal. The Regulator nominated three grounds in the Notice of Appeal but only pursued two of them. They are:
- (a)the Commissioner erred in his interpretation and application of s 32(5) of the Act when he determined that because Mr Chapman had not established that stressors 1, 2, 4 and 7 did not fit within the category of unreasonable management action taken in an unreasonable way in connection with Mr Chapman’s employment that those stressors could not be considered as causative of the psychiatric injury; and
- (b)the Commissioner erred in his interpretation and application of s 32(5) of the Act when he determined that the factual outcome that four of the stressors were not found to be unreasonable management action taken in an unreasonable way and that two were found to be unreasonable management action taken in an unreasonable way without a temporal link to Mr Chapman’s psychiatric injury does not preclude him from receiving compensation for a personal injury if the remaining 2 stressors were found to be major significant contributing factors.
- [7]Before considering the grounds of appeal it will assist if the findings made with respect to the stressors are set out in a summary form.
Stressor 1
- [8]This was an assertion by Mr Chapman concerning Mr Scholz’s conduct over a three-year period from 2009. The Commissioner had noted at [4] of his reasons that: “The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.” At [203] of his reasons the Commissioner said:
“ … For a stressor said to have occurred over a period of time from 2009 to 2012 there was little in the way of evidence to support [the allegation that] Chapman had been expected to be available to attend for lengthy meetings outside of business hours for which he received little or no notice of cancellation of such meetings.”
- [9]He then said:
“[204] The onus on Chapman in respect of satisfying the stand[ard] of proof regarding Stressor 1 has not been met.”
- [10]In those remarks, it would seem that the Commissioner has held that, for this stressor, Mr Chapman has not established the factual basis for the application of s 32(1).
Stressor 2
- [11]This concerned an allegation that the employer did not share the outcome of client meetings from 2009 until mid-February 2014 with the result that Mr Chapman looked unprepared when he met a client. The Commissioner noted that Mr Chapman failed to provide any documentary evidence to support the allegation concerning this practice and that he had not raised this issue with any of his doctors as being something that related to the cause of his injury. I interpret his reasoning as involving a conclusion that this was not established by Mr Chapman but, even if he had demonstrated that these events occurred, then it would not have been “unreasonable management action taken in an unreasonable way”.
Stressor 3
- [12]Under this heading the Commissioner held that, if the action did occur as alleged, then it would have been no more than a “blemish” within the realm of reasonable management action. More importantly, the Commissioner also noted that Mr Chapman offered no evidence of decompensation at the time of the change to the reporting and, in subsequent consultations with his medical practitioners, did not mention that decision as having contributed to his psychiatric condition.
Stressor 4
- [13]The Commissioner did not accept that this allegation, if accepted, contributed in any way to Mr Chapman’s psychiatric condition. In other words, he was not satisfied that there was a causal link.
Stressor 5
- [14]This was held to be “unreasonable management action taken in an unreasonable way.”
Stressor 6
- [15]This was held to be “unreasonable management action taken in an unreasonable way”.
Stressors 7 and 8
- [16]The Commissioner considered these two stressors together because they had their origins in a management team visit to Perth in February 2014.
- [17]With respect to Stressor 7 the Commissioner said:
“[252] I am unable to conclude (after the consideration of competing evidence) that on the balance of probabilities the behaviour of Scholz was as alleged by Chapman however the use of such profanities amongst a group of males, most of whom had consumed a number of alcoholic beverages, one would suspect would in the circumstances not be causative of the psychiatric injury of which Chapman complains.
[253] I do not make a finding the behaviour was unreasonable management action taken in an unreasonable way in respect of Stressor 7 causing the decompensation of Chapman.”
- [18]With respect to Stressor 8 the Commissioner said that the conduct referred to took place and was unreasonable management action taken in an unreasonable way.
The Commissioner’s conclusions
- [19]The Commissioner expressed his conclusions in this way:
“[257] The Commission having considered the stressors contained within the Statement of Stressors is satisfied based on the requisite standard of proof [that] Chapman had [sic: has] not established that Stressors 1, 2, 4 and 7 fitted within the category of unreasonable management taken in an unreasonable way in connection with his employment and accordingly could not be considered as causative of the psychiatric injury. However in terms of Stressors 3, 5, 6 and 8 the evidence before the proceedings based upon the requisite standard of proof was sufficient to establish the management action of the employer had been unreasonable management action taken in an unreasonable way in connection with Chapman's employment.
[258] Whilst it has been determined that there was unreasonable management action at play in respect of Stressors 3 and 5, I have been unable to find that a temporal link existed between the conduct engaged upon and Chapman's diagnosed psychiatric injury. However in the case of Stressors 6 and 8 it is the opinion of the Commission that each of those particular stressors by the fact of their potential to have a detrimental impact on Chapman's immediate and long-term employment circumstances and the manner in which they were raised by the employer were major significant contributing factors to his psychiatric injury and more importantly directly proximate to the first medical intervention on 14 February 2014.
[259] The factual outcome that four of the stressors were not found to be unreasonable management action taken in an unreasonable way and that two were found to be unreasonable management action taken in an unreasonable way without a temporal link to Chapman's psychiatric injury does not preclude him from receiving compensation for a personal injury if the remaining two stressors were found to be major significant contributing factors.”
The application of s 32(5)
- [20]
“[23] A worker who claims an entitlement under the Act carries the onus of satisfying the relevant authority that s 32(1) applies and s 32(5) does not apply. These tests are to be considered separately. Clearly, if an alleged workplace injury is not covered by s 32(1), then no further inquiry is made. If the injury comes within s 32(1)(b), then s 32(5) must be considered.”
- [21]The manner in which s 32(5) is expressed leads to some unfortunate consequences. In particular, it leads to the use of the “double negative” such as “the applicant has not established that there was unreasonable action taken in an unreasonable way.” That can lead to confusion.
- [22]As was said in Mana, s 32(5) need only be considered if s 32(1)(b) has been satisfied. In other words, the Commission must be satisfied that the psychiatric or psychological disorder has arisen out of, or in the course of, employment, and that the employment is the major significant contributing factor to the injury. In reaching a conclusion on that point, the Commission will take into account the stressors nominated by the applicant. If, during that process, the Commission decides that one or more of the stressors either cannot be established as a matter of fact or, if established, that there is no causal link, then such a stressor cannot be taken into account when considering s 32(5). It is only those stressors which are held to have had the necessary causal link which can, as a matter of logic, be the subject of consideration as to whether or not they fall within s 32(5). It is, of course, open to the Regulator to nominate some other action or event which is said to have caused the disorder and comes within s 32(5).
- [23]In order that s 32(5)(a) can apply three things must be shown:
- (a)that there was reasonable management action, and
- (b)that it was taken in a reasonable way, and
- (c)that the “action” gave rise to the disorder.
- (a)
- [24]If any one of those can be shown not to have taken place then the subsection does not apply. Without a causal link, the subsection does not apply. Or, if there was reasonable management action, but it was taken in an unreasonable way, then the subsection does not apply. It follows, of course, that in the unlikely event that unreasonable management action is taken in a reasonable way, then the subsection will, likewise, not apply.
The appellant’s case
- [25]The first ground relied upon misconceives the Commissioner’s reasoning. With respect to Stressors 1, 2, 4 and 7 the Commissioner held that the factual basis had not been made out or that there was no causal link or both. So far as he made any comment about “unreasonable action” when, for example, considering Stressor 7, it was unnecessary and inconsistent with the operation of s 32 as described above. The Commissioner effectively held that Stressors 1, 2, 4 and 7 did not bring Mr Chapman within s 32(1). Once that finding was made, there was no need to consider them in the light of s 32(5).
- [26]The second ground relies upon an argument advanced (and dismissed) in Blackwood v Mahaffey[2]. As was said in that decision:
“[57] … If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms the conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the worker’s favour must follow.”
- [27]While the Commissioner did not explicitly follow the pattern of reasoning referred to above, it is clear that he took the view, after a detailed examination of the evidence, that:
- (a)Mr Chapman had not established that Stressors 1, 2, 4 and 7 formed any part of the cause of his disorder, and
- (b)that while the factual basis of Stressors 3 and 5 had been established, there was no causal link, and
- (c)that stressors 6 and 8 came within s 32(1)(b) and were not excluded by s 32(5).
- (a)
- [28]Each of those findings was available to be made. The fact that the Commissioner went on to note that Stressors 1, 2, 4 and 7 had not been found to be “unreasonable management action etc.” is, although inconsistent with the legislative scheme as outlined above, irrelevant.
Order
- [29]The appeal is dismissed.