Exit Distraction Free Reading Mode
- Unreported Judgment
Nutley v Workers' Compensation Regulator ICQ 2
INDUSTRIAL COURT OF QUEENSLAND
Nutley v Workers’ Compensation Regulator  ICQ 002
DAVID JAY NUTLEY
WORKERS’ COMPENSATION REGULATOR
14 January 2019
20 February 2018
Martin J, President
WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISEASE OR DISABILITY – ARISING IN COURSE OF EMPLOYMENT – where the appellant claims to have developed an injury as a result of conduct towards him by co-workers – where the Regulator refused claim for compensation – where the Commission held that the employment had not been the major contributing factor to his injury – where the appellant appeals that decision – whether the appellant must demonstrate an error of law or a finding in excess of jurisdiction – whether the commission erred by not concluding that the appellant’s injury arose out of or in the course of the appellant’s employment with employment being the major significant contributing factor to his injury – whether there was evidence that any management action caused or contributed to the appellant’s injury – whether the Commission erred in failing to provide adequate reasons for its decision
CASES & LEGISLATION:
Workers’ Compensation and Rehabilitation Act 2003 s 32
Abbott v Blackwood  ICQ 031
Blackwood v Ziebarth  ICQ 005
Cameron v Q-Comp  ICQ 027
R Myers for the appellant
J Merrell for the respondent
Hall Payne Lawyers for the appellant
Workers’ Compensation Regulator (direct instruction)
- David Nutley was employed by Middlemount Coal Pty Ltd from 9 November 2011. He was first engaged as a truck operator and then as a pit controller. Mr Nutley claims to have developed an injury, namely an adjustment disorder with anxiety and depression, as a result of the conduct towards him of some of his co-workers. His claim for compensation was refused.
- On appeal to the Commission, Deputy President Swan held that Mr Nutley’s employment had not been the major contributing factor to his injury. Her Honour also held that, had it been the case, contrary to her finding, that his employment was the major contributing factor, then the exclusionary provisions in s 32(5)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) would have applied.
- So far as is relevant, s 32 of the Act provides:
“32 Meaning of injury
- An injury is personal injury arising out of, or in the course of, employment if—
- for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
- for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
- However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
- Injury includes the following—
- a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
- an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
- a personal injury other than a psychiatric or psychological disorder;
- a disease;
- a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;
(ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;
- For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
- 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—
- reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- the worker’s expectation or perception of reasonable management action being taken against the worker;
- 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”
The case below
- The case advanced for the appellant in the hearing before the Commission may be extracted from the Statement of Facts and Contentions which was filed on his behalf. He alleged that his inexperience and lack of training in Pit Control caused acrimony to develop with his work colleagues and led to him suffering stress. In the period between September 2012 and 1 August 2014 he said that another co-worker, Mr Large, repeatedly harassed and embarrassed him by statements made over the two way radio and also made direct threats of violence against him. Mr Nutley complained that he had been subject to repeated harassment by co-workers, in particular with respect to allegations concerning his sexual orientation. He said that while he had lodged a number of complaints about Mr Large’s conduct no disciplinary action was taken against him by management. He attributed the major significant contributing factors to the onset of his adjustment order as “… the conduct of Gordon Large and other co-workers towards him over an extended period of time ... “. Further, he said that to the extent the “… Appellant’s injury arose out of the Employer’s failure to appropriately respond to the Appellant’s concerns regarding Mr Large and his co-workers’ conduct, the Appellant contends that management action was not reasonable and/or taken in a reasonable way.”
- The respondent argued that the appellant could not be believed on some important matters and that he had exaggerated both the frequency and extent of the bullying which he claimed to have suffered and the alleged lack of managerial response to his complaints. It was contended that the major significant contributing factor to the appellant’s adjustment disorder was the effect on his perception about the actual events that occurred in the workplace caused by his post-traumatic stress disorder. Alternatively, it was argued that his injury arose out of or in the course of reasonable management action taken in a reasonable way concerning the steps the employer took to deal with his complaints. The post-traumatic stress disorder arose out of a sexual assault which took place in July 2013 when he was drugged by one person and raped by another male person.
Grounds of appeal
- The Application to Appeal contains the seven grounds of appeal. Some of them appear to assert errors of law, others clearly assert errors of fact. On the hearing of the appeal, the appellant reduced the grounds argued to two but they appear to be a combination of some of the grounds listed in the Application to Appeal.
- In the appellant’s written submissions he appears to rely on two grounds:
- (a)“The Commission ought to have concluded that the Appellant’s injury arose out of or in the course of the Appellant’s employment with employment being the major significant contributing factor to his injury.”
- (b)“ … there was no evidence that any management action caused or contributed to the Appellant’s injury in any way.”
- Under those headings, the appellant has included some other grounds which include allegations of error of fact and a failure to provide adequate reasons for the conclusions reached.
- Section 561 (2) of the Act applies the relevant provisions of the Industrial Relations Act 2016 to an appeal of this kind. An aggrieved party may appeal a decision of the Commission on the grounds of error of law or excess, or want, of jurisdiction, but may only appeal on a question of fact where leave has been given. Leave was not sought and so the appellant may not argue any ground which relies upon an alleged error of fact.
- The case advanced for the appellant seems to have been based upon a misapprehension about the nature of the appeal. Mr Myers, who appeared for the appellant, submitted that the appeal was an appeal by way of rehearing and, thus, the court ‘is required to look at the evidence that was given below to form a determination whether the finding of the deputy president is capable of being supported.” That is, with respect, incorrect. While s 561(3) of the Act provides that the appeal is by way of rehearing such an appeal is subject to the provisions of the Industrial Relations Act 2016 (IR Act). Section 557 of the IR Act sets out the grounds upon which an appeal may be made. It does not allow an appellant to undertake a general review of the case to see if the decision can be supported. It is for the appellant to demonstrate that there has been an error of law or that there has been a finding or determination in excess of jurisdiction or, with leave, an error of fact.
Should the Commission have concluded that the Appellant’s injury arose out of or in the course of his employment and that his employment was the major significant contributing factor to his injury?
- This was the question framed by the appellant in his submissions. He submits that the Commission appears to have supported that its finding that employment was not a major significant contributing factor by rejecting the contention that the appellant suffered abuse from Mr Large on a daily or weekly basis. He argues that it was never part of his case that he was abused by Mr Large on a daily or weekly basis from 9 November 2011 to 1 August 2014.
- In  of her reasons the Deputy President listed the matters which led her to the conclusion that the injury was not one where employment had been the major contributing factor. One of those matters was: “I have not accepted that the Appellant on adaily or weekly basis suffered abuse from Mr Large.” That was a finding open to be made. And it was the case for the appellant that he had been so abused. He alleged in his Statement of Facts and Contentions that between those two dates Mr Large repeatedly used the two-way radio to harass and embarrass him. He supported that contention with his own evidence: that he was verbally abused “at least multiple times each fortnight” or on a “frequency normally daily basis”, that the disparaging remarks were made every week, that from February to August 2014 he would be abused by Mr Large “nearly every day – nearly every second day”, and at other times he would be abused every week. He said that the taunts, verbal abuse and ridicule occurred over a period of two years and nine months.
- In his evidence in chief he said:
“Ever any period when – your co-workers and people like Large and people like Mr Wairau and abstained from making threats and ridiculing you and talking of your incompetence? – – – Not unless they were off sick or on annual leave.”
- The case for the appellant was clearly made and the question asked about it by the Deputy President was appropriate given the nature of the allegations.
- The next ground which appears to have been argued is that the Deputy President ignored, or failed to take into account, the claim that the appellant’s decompensation arose out of acrimony with his colleagues which came about due to his inexperience and lack of training in pit control. It is contended that the commission failed to consider whether the identified stressors gave rise to the decompensation. That, with respect, is not so.
- Under the sub-heading “Factors associated with Appellant’s position as Pit Controller” the Deputy President says:
“ The Appellant alleges that he was not appropriately qualified or trained to perform the role of Pit Controller. The placement of him in this role created acrimony between him and more experienced miners which led to interactions between him and his co-workers being difficult. The Appellant claims to have suffered stress in this position.”
- The Deputy President then goes on to consider evidence given about that very point. After doing that, the Deputy President said:
“ I have accepted that the Appellant’s work was demanding and evolving over time. That, in itself, is not unusual. While witnesses called by the Appellant attested to him performing well in that job, I accept that the nature of his expanded position caused the Appellant a degree of stress on occasion.”
- Thus, the Deputy President did consider the issues concerning his capacity to perform the role of Pit Controller.
- The next ground appears to be that there was no evidence to justify a rejection of the Appellant’s contentions concerning Mr Large. That is not so. There was evidence, referred to by the Deputy President, which she accepted demonstrated that Mr Large had made argumentative and derogatory comments towards the appellant and she accepted that Mr Large behaved inappropriately on occasions. But she found that it did not occur with the frequency alleged by the appellant.
- There was evidence to support that finding. In particular, the evidence of Ms Stewart concerned the effect of the appellant’s post-traumatic stress disorder on his perception of what was happening at work and the appellant’s admission that he had felt paranoid as a result of his use of crystal methamphetamine. She was also entitled to rely on evidence about a lack of complaint to management until February 2014 and a failure to seek medical treatment until August 2014 as giving rise to an inference that the appellant was exaggerating.
- The next ground concerns an assertion that the commission ignored the evidence of Mr Wharerau, Mr Willcockson, Mr Wairau and Ms Neagle. There is a difference between ignoring evidence and not accepting evidence. The Deputy President did consider the evidence of those people and accepted it in part and did not accept it in other parts. The consideration of that evidence appears in various parts of the reasons in  to .
- Finally, under this subheading, the appellant then argues that the Deputy President “…appears to have misunderstood or misconstrued the evidence of the Appellant’s psychiatrist, Dr Levien.” The Deputy President did not misconstrue or misunderstand that evidence - she did not accept it. It was accepted by the psychiatrist that his conclusion that the appellant had suffered a workplace injury due to interactions with Mr Large and the action or inaction of management may need to be strengthened by examination of further material. In his report he said that if there had been no corroboration of the events described by the appellant to the workplace he would consider reviewing his opinion as to whether or not work was the major significant contributing factor to the appellant’s adjustment disorder. He also set out a number of provisos relating to issues upon which he had based his opinion. As is the case with expert evidence generally, if the factual underpinning of a report is disturbed by, for example, the rejection by the tribunal of parts of that underpinning then it follows that the report itself is weakened to that extent.
Conclusion on this ground
- The foundation for the appellant’s case on this series of grounds is that the Deputy President should have accepted other evidence and thus found for the appellant. It was argued that the evidence, for example, of Mr Large was unacceptable because, among other things, he answered some questions in cross-examination with a single word. These were criticised as being monosyllabic responses. In other words, they were the types of responses which are ordinarily given when particular allegations are put as to whether or not a nominated event occurred. There is nothing unusual in that. The argument for the appellant, so far as it alleges that there was no evidence to support a finding or that the Deputy President addressed the wrong question is rejected. Any argument that she should have preferred some evidence to some other evidence is also rejected at least, on the basis, that to do so would not constitute an error of law.
Did managerial action cause or contribute to the appellant’s injury?
- It was argued that there was no evidence that any management action caused or contributed to the appellant’s injury in any way. This argument was inconsistent with the contention in the appellant’s Statement of Facts and Contentions that he, in part, be compensated due to the employer’s failure to respond appropriately to his concerns.
- There was evidence that the appellant had made written and oral complaints to his employer about the conduct of some co-workers. And there was evidence that management had responded by: meeting with him and his trade union representatives, corresponding with him, calling on the telephone, writing to his trade union, seeking responses from Mr Wairau about the complaints and moving him from one particular Crew.
- The appellant spoke to psychiatrists of his concerns about management action (Dr Wong and Dr Levien) and each of them said that management’s response contributed to the appellant’s anxiety.
Were adequate reasons given?
“ …The basic question which must be asked when a submission of this nature is made is: has a material issue not been addressed or has material evidence been overlooked? It is not just whether an issue or evidence has not been attended to, but whether a material issue or material evidence has been overlooked. In determining the materiality one looks to the whole of the reasons and how the decision maker has applied the relevant standard or test. In this case, it was unnecessary to make a finding about chastisement because the approach taken by the Deputy President did not require that. The mere fact that there is a difference in evidence about a particular matter does not make it material.”
- The Deputy President addressed the major issues in this case in her reasons. For example, with respect to whether or not employment was the major significant contributing factor, she considered whether or not she should accept the appellant’s version of events (see -, -, -), the medical evidence relating to his condition (see -), and the appellant’s perceptions of the behaviour of others (see ).
- In  of the reasons the Deputy President set out nine matters which she had taken into account in making the finding set out in  that employment had not been the major contributing factor to the injury.
- In - of the reasons the Deputy President deals with the inconsistency between the appellant’s Statement of Facts and Contentions concerning the relevance of management action in the expert reports and the submission made at the hearing that “There is no suggestion that the consequences of any management action caused or contributed to the Appellant’s injury in any way.”
- On this issue, I respectfully agree with what Hall P said in Cameron v Q-Comp
“ It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart, viz:
‘… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444:
‘It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.’
Over twenty years later, the nuances of meaning carried by the colourful phrase, ‘miscarriage of justice’, render the passage less helpful than it once was. However, the more moderate formulation in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, viz.:
'This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).', continues to be helpful. The observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1990) 185 CLR at 273, are to the same effect. Footnotes omitted, the passage is:
‘These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.’.” (citations omitted, emphasis added)
- Those principles continue to apply with respect to decisions of the Commission. The Deputy President adequately exposed the reasoning she employed.
- No appellable errors have been shown.
- The appeal is dismissed.
- Published Case Name:
David Jay Nutley v Workers' Compensation Regulator
- Shortened Case Name:
Nutley v Workers' Compensation Regulator
 ICQ 2
14 Jan 2019