Guymer v Workers' Compensation Regulator
[2018] ICQ 9
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- Guymer v Workers' Compensation Regulator[2018] ICQ 9
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Guymer v Workers' Compensation Regulator[2018] ICQ 9
Guymer v Workers' Compensation Regulator[2018] ICQ 9
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Guymer v Workers’ Compensation Regulator [2018] ICQ 009 |
PARTIES: | STEVEN GUYMER (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2017/18 |
PROCEEDING: | Appeal |
DELIVERED ON: | 4 October 2018 |
HEARING DATE: | 4 December 2017 |
MEMBER: | Martin J, President |
ORDER/S: | 1. The Appeal is dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the Appellant was an employee of the Gold Coast City Council for more than a decade when his employment was terminated in 2015 – where the Appellant had previously lodged four applications for compensation in respect of alleged psychiatric injuries – where a fifth application for compensation in respect of an aggravation of an earlier psychiatric injury was lodged and rejected – where the Appellant appealed that decision to the Commission – where that Appeal was dismissed by the Commission on the application of the Respondent because there was no relevant medical evidence to support a claim of an aggravation of a pre-existing psychiatric injury or to support a claim for a fresh injury – whether the Commission erred in law by making findings when the allegations supporting the findings had not been put to the relevant witness in cross-examination as required by the rule in Browne v Dunn (1893) 6 R 67 (HL) – whether the Commission erred in law by not allowing the Appellant to re-examine the relevant witness on the question of the regression of the Appellant’s condition |
CASES AND LEGISLATION: | Browne v Dunn (1893) 6 R 67 (HL) Guymer v Workers’ Compensation Regulator [2017] QIRC 80 Piwonski v Knight [2003] SASC 169 Power v Torres Strait Island Regional Council C/2010/65, 22 March 2011 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Industrial Relations Act 2016 (Qld) s 531 |
APPEARANCES: | R D Cumming instructed by Mark M Stone Solicitor P B O'Neill directly instructed by the Workers’ Compensation Regulator |
- [1]The appellant had been an employee of the Gold Coast City Council for more than a decade when his employment was terminated in 2015.
- [2]On 24 June 2015, he lodged an application in respect of an alleged psychiatric injury. It was rejected. Mr Guymer’s appeal in the Commission was dismissed before the conclusion of the case on the application of the Regulator. Deputy President Swan concluded:
“[33] It is clear that there is no relevant medical evidence to support the claim being made by the Appellant that he has suffered an aggravation of a pre-existing psychiatric injury or that he has incurred a fresh injury.
…
[35] Consequently, there is no compensable injury which has been incurred by the Appellant pursuant to s 32 of the Workers' Compensation Rehabilitation Act 2003.”[1]
- [3]The grounds of the appeal are confined to two points:
- (a)That the Deputy President erred in law by making findings when the allegations supporting the findings had not been put to the relevant witness in cross-examination as required by the rule in Browne v Dunn.[2]
- (b)That the Deputy President erred in law by not allowing the appellant to re-examine Dr Lotz on the question of the regression of the appellant’s condition.
- (a)
The case before the Commission
- [4]During his employment, the appellant had lodged four applications for compensation in respect of alleged psychiatric injuries. Three of those applications were accepted or allowed following an appeal. This hearing concerned the fifth application which claimed an aggravation of an earlier psychiatric injury. The relevant date was 15 April 2015. The Council rejected the application and that rejection was confirmed on the basis that the Council’s actions were reasonable management action taken in a reasonable way. The claim made was for “aggravation of adjustment disorder due to reprisal action by management over a period of time to April 2015”. The Regulator’s submission was that the appellant had not sustained a compensable injury because what he was suffering from was an ongoing psychiatric condition that arose either from his first claim, or some combination of the first to fourth claims for psychiatric injury. It was the respondent’s case that he had not sustained a new psychiatric injury or an aggravation of a pre-existing psychiatric injury.
- [5]At the hearing before the Commission the appellant was represented by his father, Mark Guymer.
- [6]The evidence relevant to this appeal was from Dr Bothwell and Dr Lotz.
- [7]The evidence of Dr Bothwell (a general practitioner) was important because, on the respondent’s case, the only evidence of a reference to an aggravation of the appellant’s psychiatric condition was made in a medical certificate signed by Dr Bothwell on 15 May 2015.
- [8]In accordance with the usual practice of the Commission, Dr Bothwell gave evidence and was cross-examined by telephone. In the ordinary course of events this is a practical and satisfactory way of obtaining evidence from expert witnesses with the minimum amount of disruption to the conduct of the hearing and to the witness’ professional practice. Considerable difficulties can arise, though, when a witness has to be cross-examined with respect to documents and that witness is not present in the courtroom. The witness, advocates, and, sometimes, the member of the Commission can be at cross purposes and that can result in uncertainty about both the document being considered and the evidence given with respect to it. That occurred in this case. The Deputy President referred to a document which, in her view, had a specific date. The witness was looking at what she thought was the same document but which, in her view, did not have that same date. This was a problem which could have been easily resolved had the witness been present at the hearing. It could also be easily resolved, if they were facilities for such evidence to be given by video link. Until that is available, these difficulties will continue to arise.
- [9]After the appellant’s case had closed, the Regulator applied to dismiss the substantive application.
The first ground
- [10]The findings of the Deputy President with respect to Dr Bothwell’s evidence were relatively brief and may be set out in full:
[7] Dr Bothwell is a General Practitioner who commenced treatment of the Appellant on 6 September 2013. At that time, her records show that the Appellant had been suffering from a continuing psychiatric injury (an Adjustment Disorder) which had sustained for some period of time.
[8] Dr Bothwell, in Cross-Examination, confirmed that the Appellant's Adjustment Disorder had continued for some time prior to her initial consultation in 2013 and she had merely confirmed the pre-existing diagnosis and continued treating him for that diagnosis until 2015.
[9] From that time, Dr Bothwell had continued the same diagnosis and recorded the injury as having been caused by “bullying in the workplace, victimisation, and managerial mismanagement”.
[10] Throughout that period of time, Dr Bothwell said that there had not been a huge improvement in his overall condition. Dr Bothwell had also back-dated a significant number of the Appellant's medical certificates over a period of time.
[11] The Regulator submits that the only evidence provided where a reference to an aggravation of the Appellant's psychiatric condition is made, occurred on 15 May 2015 where Mr Mark Guymer (Snr) visited Dr Bothwell in the absence of the Appellant. A medical certificate eventually issued altering the Appellant's diagnosis to that of “an aggravation” of a pre-existing psychiatric condition. This Certificate was dated 15 May 2015 and referred back to 30 April 2015, where the first mention of an "aggravation" was raised. The Regulator submits:
● “It is inconsistent with the earlier medical certificates of Dr Bothwell that attributed the psychiatric condition occurring in January to 30 April 2015 to events from 2013;
● Dr Bothwell has issued two conflicting medical certificates, the first actually dated 30 April 2015 certifies that on that date the Appellant was suffering from the pre-existing psychiatric condition attributable to the 2013 events. Two weeks later Dr Bothwell issues a further workers' compensation medical certificate that certifies on that date that the Appellant was suffering from an aggravation of the psychiatric disorder with the stated date of injury being April 2015.
● The consultation note of 15 May 2015 (page 6 of Exhibit 24) apparently indicates that the consultation was with Mark Guymer and not with the Appellant at all. There is no mention of a medical certificate in fact issuing that day”. [Respondent's submissions, point 29]
[12] Dr Bothwell had back-dated a number of the Appellant's workers' compensation certificates over a period of time while having not seen the Appellant during those periods covered by the Certificates. At the expiration of one set of absences, the Appellant would see Dr Bothwell and a further back-dated process would occur.
[13] The Regulator rightly, in my view, submits that the medical certificate of 15 May 2015 is inherently unreliable. As well, the Regulator says that considering the inconsistency with earlier medical opinions expressed by Dr Bothwell over an extensive period of time, that medical certificate “appears to be an artifice (like the earlier back-dated medical certificates) created solely to support an illegitimate further claim for compensation”.
- [11]The appellant contends, and this is not disputed by the respondent, that the circumstances of the consultation on 15 May 2015 which gave rise to the certificate of the same day were not raised with Dr Bothwell in cross-examination.
- [12]Dr Bothwell was questioned about the certificates which she had provided and which certified that the appellant was not capable of work during many periods of time in 2012 and 2013. The certificates had been given even though the appellant was not her patient at the times which were set out in that the certificates. When Dr Bothwell was taken to these matters, including three certificates all dated 20 September 2012, she merely said that it must have been an error.
- [13]The certificate of 15 May 2015 was, it appears, based upon a consultation Dr Bothwell had, not with the appellant, but with his father who appeared as his advocate in the Commission. That a medical practitioner would apparently certify that someone was unfit to work or had a particular injury at a particular time without having seen that person at that time is a matter of great concern. Nevertheless, the appellant relied on that document.
- [14]The appellant argues that the Deputy President should not have found that the medical certificate of 15 May 2015 was inherently unreliable or that it was an artifice to support an illegitimate claim when the author of the certificate did not have those matters put to her for her comment.
- [15]Apart from the certificate of 15 May 2015, there are also the certificates with respect to periods of time when Dr Bothwell was not treating the appellant. It is accepted that her first consultation with him was on 6 September 2013. Notwithstanding that, Dr Bothwell issued over 40 medical certificates for various periods of time which were all before 6 September 2013. Unsurprisingly, no attack was made by the appellant on the omission to cross-examine Dr Bothwell in detail on these matters. The documents spoke for themselves.
Application of the rule in Browne v Dunn in the Commission
- [16]The first part of the appellant’s case relies upon a failure on the part of the respondent to observe the rule in Browne v Dunn.[3] The rule, simply put, is that where a party intends to contradict evidence given by a witness, it should give the witness an opportunity to comment by putting the substance of that contradictory version to the witness in cross-examination. It must first be observed that it is a rule of cross-examination. A member of the Commission is not somehow bound by the rule, but may take a breach into account or may require that steps be taken to have the matter properly dealt with.
- [17]The application of the rule to those appearing before the Commission must be considered in the light of ss 531(2) and (3 of the Industrial Relations Act 2016 (Qld). Those subsections relevantly provide:
“(2) In proceedings, the commission or Industrial Magistrates Court—
- (a)is not bound by rules of evidence; and
- (b)may inform itself in the way it considers appropriate in the exercise of its jurisdiction.
- (3)Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—
- (a)the persons immediately concerned; and
- (b)the community as a whole.”
- [18]
“[7] It is the contention of the Respondent that s. 320(2) of the Act frees the Commission from the strictures of the rule in Browne v Dunn, op. cit. I quite accept that rigid application of the rule may work injustice. Section 320(2) of the Act should be read as a grant of power to moderate the operation of the rule, e.g. by the grant of an adjournment to consider evidence and by permitting the recall of witnesses. However, the section cannot be read as authorising trials which become unfair by the conduct of a party (or of the presiding member, compare Unsted v Unsted per Street J). There may be room for argument about whether the remedy arises under s. 341(1) of the Act or s. 248(1)(e) of the Act. However, the traditional view is that s. 320(2) of the Act does not authorise departure from the rules of natural justice, compare Q-COMP v Gordon Robinson.” (footnotes omitted)
- [19]Infringement of the rule does not automatically lead to a direction for a new hearing. As Glass JA said in Seymour v Australian Broadcasting Commission.[6]
“Assuming that the rule had been violated, it by no means follows that the plaintiff should be awarded a new trial. Since the rule is designed to prohibit the unfair conduct of trials, it is obvious that breaches of it may occur in many different circumstances and no uniform sanction can be laid down. Depending on the nature of the infraction, the remedy is essentially a matter in the discretion of the trial judge. In extreme cases, he may feel that it is proper to discharge the jury. More often than not, however, he will conclude that the abuse is adequately
dealt with, as on this occasion, by instructing the jury that the offending
counsel had engaged in unfair tactics and by authorising his opponent to turn
this to his forensic advantage. On appeal, as happened in Browne v Dunn, the
Court will be inclined to disregard a submission on the evidence which was
not tested by putting questions to the party best able to deal with it: Precision
Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370. But, in my opinion, it is
going altogether too far to contend that evidence which would otherwise be
relevant to a conclusion for which one party contends should be disregarded
because its implications have not been put to the party against whom the
inference is to be drawn. In my opinion, the trial judge would have been
entitled to refuse such a direction and his failure to give it does not entitle
the plaintiff to a new trial.” (emphasis added)
- [20]There are means by which a member of the Commission can deal with a breach. One way is to reassess the evidence taking into account the non-observance of the rule. See Piwonski v Knight.[7] Another is to put aside the evidence allowed in breach of the rule. See Precision Plastics Pty Ltd v Demir.[8]
- [21]Those methods are also available on appeal to this Court. If, on an examination of all the material, it can be shown that the omission to observe the rule will not work an irreparable harm, then this Court can deal with the matter just as a member of the Commission might if confronted with such an omission.
The second ground
- [22]This ground concerns a refusal by the Deputy President to allow the appellant’s advocate to re-examine Dr Lotz with respect to the question of regression in the appellant’s condition.
- [23]In re-examination of Dr Lotz, Mr Guymer asked him a series of questions about the medicine he had been using and the following occurred:
“Now, Steven was suffering anxiety and depression and that decision was anxiety – adjustment disorder, anxiety and depression and a 2.5 per cent permanent impairment? – – – Correct.
Do you think that, although it’s the same diagnosis, is it due to a different cause? – – – Well, that’s how Steven put it across. He basically said that the death threats were no longer the issue, that he got over that and now the biggest issue was the ongoing injustice and what he perceived to be the harassment by Gold Coast City Council.
So would you say, in August 2015, due to his sacking, that his – what – his – what he was suffering from was exasperated [sic] due to his termination? – – – [Indistinct]
MR O'NEILL: Well, I object. That doesn’t arise out of cross examination either.
WITNESS: – – – add to his sense of injustice, yes.
DEPUTY PRESIDENT: Just a moment, thank you.
MR O'NEILL: That doesn’t arise out of cross examination either.
DEPUTY PRESIDENT: No. I don’t think it did. … ”[9]
- [24]The Deputy President then returned to an earlier point and asked some questions of Dr Lotz. Mr Guymer did not pursue the question he had asked and went on to another subject.
- [25]The relevant finding of the Deputy President was:
“[17] There has been no evidence from Dr Lotz that the Appellant had ever sustained an aggravation of his psychiatric condition arising from events from January to April 2015. Dr Lotz also notes that his view conforms with that of Dr Bothwell over that period of time.”[10]
- [26]The relevant question appears at Transcript Day 3, page 103, line 29:
“So would you say, in August 2015, due to his sacking, that his – what – his – what he was suffering from was exasperated due to his termination? --- [indistinct]”
- [27]Counsel for the Appellant (Mr Cumming) at the hearing of this appeal emphasised that, as aggravation was the key issue in question, fairness would require that Mr Guymer be allowed to ask that question.
- [28]Mr Cumming was asked to take the Court to the cross-examination that was said to give rise to Mr Guymer’s question at the trial. He said that the question arose generally out of the entire cross-examination, and in particular, out of the following exchanges:
“MR O'NEILL: Okay. Doctor Chalk, in his initial report that was provided to the Gold Coast City Council of the 24th of August of 2015, has, in fact, indicated – and this was in relation to one of the earlier claims, but has indicated that, in his view, at the time of his clinical assessment of Mr Guymer on the 20th of August of 2015, Mr Guymer was, in fact, suffering from an adjustment disorder, but, in his view, it was just a continuation of the same condition that he had been suffering from for some time. That was his opinion. Would you agree with that opinion? --- Yes, it would be [indistinct] related to the initial death threats and assault.
All right. Thank you. And in a more recent report where Dr Chalk has been provided with a considerable amount of further information, he notes – in response to a question whether the psychiatric injury, the subject of the earlier claims 1 to 4, resolved at any point, he says:
Having looked at all of the information, I am not of the view that this man’s psychiatric injury that emanated from the first claim in 2011 ever clearly resolved. Indeed, the tribunal was of the view that he had a degree of enduring symptomatology and a consequent impairment. Having reviewed the additional material, I am not of the view that this man’s condition ever clearly resolved.
And you wouldn’t disagree with that opinion? --- No.
Okay. In response to a further series of questions, Dr Chalk observes:
I remain of the view that, as of 30 April 2015, Mr Guymer’s psychological condition, namely a chronic adjustment disorder with anxious and depressed mood of mild severity, was a continuation of a psychological condition assessed for the permanent impairment in the tribunal of June 2014 that is subject of the first application.
It would seem from your response to the earlier question that you also agree with that observation? --- Yes.”[11]
- [29]Further, in written submissions, the Appellant argues that the Respondent itself introduced evidence of regression in cross-examination of Dr Lotz. At Transcript Day 3 page 92, the following appears:
“MR O'NEILL: And then there’s a consultation note on the 10th of August of 2015 which records:
Teary, regressed, DEPR –
I take it that’s depression --- Correct
Fed up and perceived persecution versus self. Victimisation. Compared to colleagues by Gold Coast City Council.
? --- Yes.
Is that all correct? --- Correct.”
- [30]The Appellant argues that, as a result of not allowing Mr Guymer to ask the question of Dr Lotz, there was no opportunity for the tribunal to discover whether or not there was evidence from Dr Lotz that the Appellant had ever sustained an aggravation of his psychiatric condition.
- [31]The Appellant argues that, even if the question did not arise out of cross-examination, it certainly related to a major issue at the heart of the dispute. The Deputy President should have therefore required the objection to be fully argued. The Deputy President should have told Mr Guymer he could seek leave to ask the question.
- [32]The following are matters relevant to consideration of the effect, if any, of the lack of re-examination:
- (a)Mr Guymer uses the word “exasperation” - it is unclear whether he intended to say aggravation or exaggeration;
- (b)Dr Lotz actually responds before the objection carries, and says “…add to his sense of injustice, yes.”
- (c)The appellant didn’t put that question, or a similar question, to any of the appellant’s witnesses;
- (d)Any alleged regression of symptoms in August 2015 would not be relevant to establish that an aggravation injury had occurred in April 2015.
- [33]Whether the issue arose out of cross-examination or not, the consultation took place four months after the alleged incident. In addition, there was no evidence to support a conclusion that the appellant had, at any relevant time, recovered from the initial psychiatric injury. Indeed, there is evidence to the contrary, namely, the consultation notes of Dr Bothwell, other medical certificates provided by general practitioners, and the workers’ compensation medical certificates provided by Dr Bothwell. Dr Lotz had given evidence that he agreed with Dr Chalk’s opinion that the appellant’s adjustment disorder was a continuation of the same condition that he had been suffering from for some time.
Conclusion
- [34]In order to succeed on an appeal of this nature, an appellant must demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. While the failure to observe the rule in Browne v Dunn is an error on the part of counsel, that does not infect the decision of the Commission with the same error. The Commission should do what it can to ensure that the rule is observed. But the failure to observe the rule is not fatal to a decision based on all the evidence. As has been observed above, there are ways by which the Commission can, if otherwise appropriate, proceed even where the rule has not been observed. In this case, there was such an abundance of evidence against the appellant’s contentions that it was open to the Commission to proceed. I do not accept that the Deputy President, in making an observation about the actions of Dr Bothwell, used that as the basis for the decision. It was not open to the Deputy President to reach that conclusion about Dr Bothwell without her having been cross-examined on the point, but even putting all that to one side and assuming that Dr Bothwell would have in cross-examination on this point given evidence supporting the appellant, the appellant could not prove his case.
- [35]The issue with respect to Dr Lotz was even weaker. The issue upon which re-examination was sought was with respect to an event some four months after the relevant time on the appellant’s case. There was, in any event, an answer recorded to the question which did not support the appellant’s case. The mere fact that something might “add to [the appellant’s] sense of injustice” does not support a claim for aggravation.
- [36]The appellant has not demonstrated that there was an error of the kind sufficient to justify interfering with the decision below. The appeal is dismissed.
Footnotes
[1] Guymer v Workers’ Compensation Regulator [2017] QIRC 80.
[2] (1893) 6 R 67 (HL).
[3] (1893) 6 R 67 (HL).
[4] Section 320(2), Industrial Relations Act 1999.
[5] C/2010/65, 22 March 2011.
[6] (1977) 19 NSWLR 219 at 225.
[7] [2003] SASC 169 at [82].
[8] (1975) 132 CLR 362 at 370.
[9] T3 – 103.
[10] Guymer v Workers’ Compensation Regulator [2017] QIRC 80.
[11] T3 – 94-95.