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Power v the Workers' Compensation Regulator[2015] QIRC 192

Power v the Workers' Compensation Regulator[2015] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Power v the Workers' Compensation Regulator [2015] QIRC 192

PARTIES:

Power, Colin

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2014/360

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

12  November 2015

HEARING DATES:

14 and 15 April 2015

29 May 2015

29 and 30 July 2015

4 September 2015 - Employer's written submissions

17 September 2015 - Regulator's written submissions

24 September 2015 - Appellant's written submissions

6 October 2015 - Employer's written submissions in reply

HEARD AT:

Bowen

MEMBER:

Industrial Commissioner Fisher

ORDER:

  1. The Appeal is dismissed.
  2. The decision of the Regulator is confirmed.
  3. Costs reserved.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where appellant sustained personal injury - whether injury arose out of employment - whether employment is the major significant contributing factor to the injury - whether injury is excluded because it arose out of or in the course of reasonable management action taken in a reasonable way - whether stressors contributed to the development of his injury - determined unable to find the stressors to be substantiated and management action taken was reasonable and reasonably taken - appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32(1), s 32(5)

Groos v WorkCover Queensland (2000) 165 QGIG 106

R v Turner [1975] QB 834

APPEARANCES:

Mr M. Guest, Counsel instructed by Shine Lawyers for the Appellant.

Mr S. McLeod, Counsel directly instructed by the Workers' Compensation Regulator.

Mr J. Dwyer, Counsel instructed by M+K Lawyers for the Employer, Fynbat Pty Limited trading as Bowen Industrial Hire.

Decision

  1. [1]
    Colin Power developed a psychiatric/psychological condition while working for Bowen Industrial Hire.  Mr Power commenced employment with BIH in 2009.  Various work events are said to have contributed to the onset of his condition.  In broad terms, from 2010, management of BIH required him, either directly or indirectly, to perform work for which he was not trained or licensed.  In addition, he was subject to bullying and harassment by another employee and management of BIH failed to respond to this appropriately.  He decompensated on 7 March 2014.
  1. [2]
    BIH was given leave to appear and be heard in the proceedings and took the primary role of defending the appeal.  Despite the Workers' Compensation Regulator being the respondent to the appeal, it did not call any witnesses or put submissions to the Commission except to support those of BIH.
  1. [3]
    At the request of BIH and with the consent of the parties, the Commission undertook a view of a piece of equipment that was central to the proceedings, the Manitou, on 14 April 2015.
  1. [4]
    Those appearing in the proceedings agree, and the Commission accepts, that Mr Power was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 and that he sustained a personal injury.  At the opening of Mr Power's case, Counsel identified that the Commission would be required to determine whether Mr Power's injury arose out of or in the course of his employment, whether employment is the major significant contributing factor to the injury as well as whether the injury is excluded because it arose out of or in the course of reasonable management action taken in a reasonable way.  The written submissions on behalf of BIH and Mr Power focus on the reasonable management action exclusion found in s 32(5) of the Act as the issue to be determined.  The legislation requires the Commission to determine whether the injury satisfied the provisions of s 32(1) before considering the exclusionary provision.  Because of the manner in which this case was conducted, it is necessary to depart from this approach.

Background Information

  1. [5]
    Mr Power holds a forklift operator's licence and is licensed to perform high risk work.  On starting employment with BIH, Mr Power largely operated a two and a half tonne forklift in the yard.  BIH also had a Manitou and Mr Power performed work with it.
  1. [6]
    When the new Manitou[1] was bought in June/July 2012, Mr Power undertook some induction training which consisted of a 20 minute interactive safety video and completion of a tele-handler questionnaire, both prepared by the Elevating Work Platform Association of Australia.  Mr Hillery assessed Mr Power as being competent on the use of the Manitou with Forklift attachments only and required Mr Power to maintain his High Risk Licence for Forklift Truck Operations.
  1. [7]
    A CN licence covers the operation of a non-slewing crane, such as the Manitou, that incorporates a boom or a jib.

The Stressors

  1. [8]
    Mr Power filed a Statement of Stressors setting out the work events which he claimed contributed to the development of his injury.  This Statement was amended multiple times including during the proceedings as Mr Power was giving evidence.
  1. [9]
    Ultimately, nine Stressors are relied on by Mr Power.  The Stressors are not dealt with in the same order as they appear in the Statement.  Stressors 3 and 4 are dealt with first and together as they address the same subject matter.  The reason for dealing with these Stressors first will become evident.  Consideration will then be given to Stressors 2, 9 and 5 as BIH and Mr Power address these Stressors collectively.  They agree that Stressor 9 is incorporated into Stressor 2.  Stressor 5 is an extension of Stressor 2 and particularises certain work locations where Mr Power operated the Manitou as a crane.  The remaining Stressors are then considered in order.

Stressor 3 - September 2012

The Appellant complained to Paul Hillary[2] regarding the ill-fitting covers for tines of the crane.  The Appellant indicated to Paul that when the Appellant was driving the crane on [sic] highway the covers would almost fly off.  The Appellant was concerned if they did this would cause an accident.  Management failed to act adequately or reasonably to the concerns raised.

Stressor 4 - October 2012

The Appellant was instructed by the Respondent, and continued to drive the crane with the ill-fitting cover.  The Appellant made verbal complaints over a period of 6-8 weeks to Paul Hillary about his concerns regarding the ill-fitting covers.

The claimant took one week off work on stress leave.  On his return the covers had been fixed.

  1. [10]
    Mr Power said that the Manitou did not have any tine covers when it was first delivered and he drove it with a pallet covering the tines.  Scott Brogan, the Health and Safety Officer of BIH, made the covers for the tines.  Mr Power said that the tines were about one metre long and the first set of tine covers only covered a length of about one foot.  The covers did not have a chain.  In his view, the covers were not satisfactory when the Manitou was being driven on the highway where there were a lot of potholes.  The state of the roads and the type of suspension in the vehicle meant that the tine covers nearly flipped off and on occasion they did flip off.
  1. [11]
    Mr Power reported his concerns multiple times to Paul Hillery, a part-owner and manager of BIH.  After not receiving any response from Mr Hillery, Mr Power went to his General Practitioner and was given a medical certificate for an absence from work from 15 to 26 October 2012.  Mr Power said his sick leave was caused by the stress he was experiencing over the inadequacy of the tine covers.  His General Practitioner confirmed that the medical certificate was issued for "stress related to work issues, safety issues."  On his return to work, Mr Power found the tine covers had been modified to a safer, longer length.
  1. [12]
    Under cross-examination, Mr Power agreed he was required to complete the Manitou log book on every occasion he used it.  On one occasion he recorded his concern about the tine covers in the log book.  As he went to drop off the log book entry, Mr Hillery walked past.  When Mr Power asked him what he should do with it, "Just rip it out?", Mr Hillery responded in the affirmative and said he would attend to the problem.  Mr Power then ripped out the page.  When Mr Power was presented with the relevant log book, there was no evidence of a page being ripped out.
  1. [13]
    Mr Brogan said he made the two sets of tine covers.  The first had a chain affixed by shackle to the covers.  At a safety meeting in October, Mr Power raised concerns about the tine covers with Mr Hillery and mentioned that he did not like having to get in and out of the forklift to take the chain on and off.  As a result, Mr Brogan was given responsibility to remove the chain and extend the length of the covers.
  1. [14]
    Darryn Lingard, Superintendent, BIH, confirmed Mr Brogan's evidence that the first set of tine covers were fitted with a chain and this was subsequently removed.
  1. [15]
    Mr Hillery said that as the Manitou did not come with a set of tine covers, Mr Brogan made a set.  That set had a chain attached.  He acknowledged that Mr Power had raised concerns about the tine covers nearly flying off but he had observed Mr Power was not using the chain to secure them.  He told Mr Power the chain was there to prevent the covers falling off.
  1. [16]
    Mr Hillery said Mr Power did not make a formal complaint to him between July and October 2012 about the adequacy of the tine covers but the matter had been raised at a safety meeting in October.  As a result, the tine covers were lengthened and the chain was removed.  Mr Hillery was of the opinion that one set of tine covers was not safer than the other and that the first set was secure even were the chain not secured.
  1. [17]
    Mr Hillery denied all knowledge of any conversation with Mr Power about a log book entry and his ripping the page out.
  1. [18]
    Finding:  I should note that tendered in evidence were photographs taken by Mr Brogan of the two sets of tine covers.  The first set with the chain was a reconstruction.  My decision has been made with this knowledge and is based on an assessment of the oral evidence.
  1. [19]
    Mr Power had some difficulty understanding the questions and articulating his answers.  However, he did respond to the questions asked.  This position accords with the evidence of Dr Futter, Consultant Psychiatrist, who made some observations about Mr Power's level of intelligence albeit in the context of his vulnerability to stress.  Nonetheless he opined that Mr Power's global cognitive functioning is intact and appropriate for his level of education.  There is nothing in the medical evidence to indicate that his level of intelligence impacted on his ability to provide truthful and consistent evidence.
  1. [20]
    Mr Power's credibility has been damaged by his contention that he ripped out a page from the Manitou log book.  As mentioned, the log book was tendered and Mr Power's evidence was found to be incorrect.  Further, these proceedings were the first occasion where he identified that the tine covers flew off.  His evidence about the number of times this occurred also varied considerably.  He said in evidence in chief this occurred once whereas under cross-examination he said they fell off regularly.  The frequency with which he said he raised his concerns with Mr Hillery also varied markedly.  Consequently, I find that Mr Power was not a reliable witness.
  1. [21]
    The Commission accepts that Mr Power had concerns about the tine covers and took sick leave as a result.  Mr Power did not record in the Manitou log book any issue with the tine covers nearly coming off while driving on the highway.  I accept he raised the issue informally with Mr Hillery who advised him of the correct operation of the covers.  Mr Power did not make any formal complaint until the safety meeting in October just before he took sick leave.  As a result of the safety meeting Mr Hillery agreed that the forklift covers would be modified and directed Mr Brogan to undertake that work.
  1. [22]
    However, I am not satisfied that the concerns Mr Power had about the first set of tine covers had foundation.  The weight of evidence is that the first set had a chain attached and this secured them.  I also note that this set was made by the Health and Safety Officer, who also happened to be a boilermaker.  These dual qualifications would have assisted in ensuring the safety of the tine covers.  In my view, it was more likely that Mr Power did not use the chain attached to the tine covers as this required him to alight from the cabin.
  1. [23]
    In the circumstances I am satisfied that Mr Hillery took reasonable management action in a reasonable way by firstly advising Mr Power about the correct operation of the tine covers.  Further, when the matter was raised formally at the safety meeting, Mr Hillery agreed to their modification.  That work was undertaken and ready on Mr Power's return.

 Stressor 2 - July 2012 to 7 March 2014

The Appellant was required to operate a Manitou crane in circumstances that required the use of a jib attachment or other equipment to ensure the safe lifting of certain materials, in circumstances where management knew or ought to have known that the Appellant would use a sling.  The Employer therefore caused, instructed or allowed the use of a sling on occasions when it was an unsafe practice to do so.  The Appellant requested Paul Hillary verbally in [sic] yard and office on numerous occasions to arrange for CN licensing to enable the Appellant to legally and appropriately operate the crane, however the response was invariably to the effect that Paul would "get back to" the Appellant.

Stressor 9 - January 2010 to July 2012

The Appellant was required to operate a Manitou crane registration number C06662 in circumstances where the Appellant was not licenced (sic) to operate that vehicle.

Stressor 5 - July 2012 to March 2014

On dates and at places the Appellant can't presently specify pending receipt of disclosure from the Respondent, the Appellant was directed to operate the crane and lift loads unsafely using forks as he was not licensed to use a jib attachment.  These occurred as follows:

  • September/October 2013 erecting 2 steel posts for sign (sic) at West Euri Creek, Bowen.  On return to yard asked Paul Hillary again for CN license but he said "I'll get back to you.";
  • Lifting roof trusses in late 2013 at Whitsunday Shores;
  • Lifting shed frames in late 2013 at Richmond Road, Bowen;
  • At various places around Bowen lifting shed kits and frames from Toll trucks to various house sites, sometimes due to lack of space the boom with load would have to be extended over the roof of the house on various dates between mid 2013 and March 2014;
  • At Bowen Showgrounds lifting electrical poles for Thiess.
  1. [24]
    It is common ground that Mr Power was the regular operator of the Manitou and on occasion slings were placed in the toolbox located on the tine covers of the Manitou.  It is also common ground that work was allocated by placing job sheets in an employee's pigeon hole.  The entries on the job sheets were made by the office staff and, on occasion by Mr Hillery, taking details over the telephone from clients.  However, Mr Power and BIH have different interpretations of the implications of these arrangements.
  1. [25]
    Mr Power said in evidence that for the first six months after the arrival of the second Manitou, his work continued as it had previously, that is, lifting pallets and bins using the equipment as a forklift.  After those six months had elapsed, Mr Hillery put slings in the Manitou's toolbox.  He also began to give him customers' job sheets and telling him to use the slings.  Mr Power performed jobs where he tied the sling to the fork tines.  He felt very uncomfortable using the slings because he did not know how to use them.
  1. [26]
    Mr Power repeatedly asked Mr Hillery to arrange for him to obtain a crane licence.  He also raised concerns about using slings with Mr Hillery on several occasions, both in the yard and in his office.  According to Mr Power, Mr Hillery's response was that he would get back to him if he required higher tickets.
  1. [27]
    Mr Hillery was present at most of the pre-start meetings held every day in the yard.  At the start of the day he would review the job sheets and have a "fair idea" of what the job required.  The jobs would be discussed at the meetings but he did not provide detailed directions about how the work was to be performed.
  1. [28]
    Mr Hillery confirmed that he put slings in the toolbox on the Manitou as Mr Power was not its only operator.  He denied in cross-examination that he told Mr Power to ensure that he had the slings with him.  His expectation was that Mr Power would arrive at a job site and make an assessment of the work to be done.  In the event that a crane was required, it was Mr Power's responsibility to contact the office and request a crane driver to attend.  Mr Hillery said that he knew Mr Power did not have a crane licence and did not expect or require him to work outside the limits of his licences.
  1. [29]
    Mr Hillery was unaware that Mr Power was doing jobs that required a crane but acknowledged that Mr Power had raised the issue of his obtaining a crane licence on a few occasions.  He was non-committal because BIH employed a sufficient number of crane operators.
  1. [30]
    Stressor 5 concerns a number of jobs where Mr Power contends he "was directed to operate the crane and lift loads unsafely using forks as he was not licensed to use a jib attachment."  A list of those jobs then follows.
  1. [31]
    In respect of the job at Euri Creek, Mr Power said Mr Hillery told him that morning to take the slings with him and he used those slings to lift the pole.  On his return he asked Mr Hillery about obtaining a crane licence.
  1. [32]
    Mr Power gave evidence that he used a sling when lifting shed panels delivered by Toll and lifting electricity poles for Thiess.  Little other detail was provided except that management would walk out with a job sheet and tell him to take his slings with him.
  1. [33]
    Mr Hillery had no recollection of Mr Power asking about a crane licence after the Euri Creek job.  He also denied asking Mr Power to undertake the work using slings.
  1. [34]
    Mr Hillery did not have an accurate recall of the Whitsunday Shores job in question because BIH had undertaken multiple jobs at that site.  However, lifting job trusses, along with the remaining jobs identified in the Stressor, were all ones that could be undertaken by a forklift.  He recalled Mr Power contacting him about the Toll job to advise that he required a crane operator's ticket to get the sheds down behind the premises.  Mr Hillery advised Mr Power that the job was only to unload the sheds from the truck and it was the contractor's responsibility to arrange anything else.
  1. [35]
    Finding:  The core issues arising from these three Stressors is that in some manner BIH made Mr Power use slings when it was unsafe.  This was done by placing slings in the toolbox located on the Manitou and by allocating work, as evidenced by Stressor 5, that required Mr Power to use slings in the performance of that work.  When Mr Power attempted to ensure that he could do this work safely by having a crane licence, Mr Hillery responded dismissively.  These actions could not be described as reasonable management action taken in a reasonable way.
  1. [36]
    It is submitted on behalf of Mr Power that the only plausible explanation for Mr Hillery placing the slings in the toolbox, in circumstances where Mr Power was essentially the sole operator of the Manitou, was that it was the employer's expectation that Mr Power would use the slings.  Further, the absence of a jib attachment which is required when lifting material using a sling, lends further weight to the contention that Mr Hillery expected Mr Power to use the slings to lift.  Slings without a jib are of no use to a crane operator.
  1. [37]
    Although the Appellant advanced this conclusion, there is another, more plausible conclusion that can be drawn from the evidence.  Mr Hillery was reasonably aware of the nature of the jobs allocated to Mr Power using the Manitou.  They were forklift jobs, within the scope of Mr Power's licence.  The nature of the work undertaken by BIH, and Mr Power specifically, meant that he worked away from the yard, unsupervised.  Given that Mr Power held a high risk forklift licence and was an experienced forklift operator, BIH relied on Mr Power, once he arrived at a job site, to assess the work and conclude whether the work fell within the scope of his licence.  If it did not, then his licence did not permit him to perform that work.
  1. [38]
    The Appellant contends, and I accept, that Mr Hillery did not explicitly advise Mr Power that he should contact the office if he was uncertain about whether the job was properly that of a forklift operator.  However, in light of Mr Power's qualifications, I consider he should have known whether the work fell within the scope of his licence.  Further, as he worked off site and was unsupervised, BIH relied on him to make that assessment and inform BIH if the job could not be safely done by a forklift.  Mr Hillery's evidence was unequivocal, and I accept, that had Mr Power contacted him to say that a crane was required, other arrangements would have been made.
  1. [39]
    As to the slings being placed in the toolbox on the Manitou, I cannot draw the same conclusion as the Appellant, i.e., that Mr Power was meant to use them.  If the slings were of no use without the jib attachment and the jib was not with the Manitou, then in the same vein, slings were of no use to Mr Power who is not licensed to use them.
  1. [40]
    There is also no evidence that Mr Power raised any concern with Mr Hillery about using slings or expressed concern about the safety of performing such work when he only held a forklift licence.
  1. [41]
    Mr Power failed to provide any detailed evidence about any of the listed events in Stressor 5 and provided only general evidence about what management was said to have advised him.  On the (limited) evidence before me, Mr Power has been unable to make out this Stressor.  In any event, I accept Mr Hillery's evidence that the jobs were ones that could be undertaken by a forklift.
  1. [42]
    In the circumstances I cannot find that management of BIH caused, advised or allowed Mr Power to use a sling.  Further, that management of BIH did not require him to operate a crane when he was not licensed.  Finally, Mr Power was not directed to lift loads unsafely using forks.
  1. [43]
    The final element of Stressor 2 is Mr Hillery's response to Mr Power's request to obtain a crane licence.  The evidence establishes that Mr Power raised the issue of his obtaining a crane licence with Mr Hillery.  Although Mr Hillery did not provide an explanation as to the reason he was non-committal, his evidence shows that he did not require another crane operator.  This was not unreasonable management action taken unreasonably.
  1. [44]
    For these reasons, I am satisfied that in relation to all three Stressors, the management action taken was reasonable and reasonably taken.

Stressor 1 - July 2012

The Appellant was advised by Paul Hillary, regarding the Manitou crane (the crane), that "you get to wear any damage done by driving the crane.  It's all your responsibility, you will have to pay for any damage done."

  1. [45]
    Mr Power's evidence is that "a minimum a couple of times" he asked Mr Hillery, what would happen if he caused an accident while driving the Manitou.  He claimed Mr Hillery responded that "I would wear the damage and any type of damage.  It was all my responsibility."
  1. [46]
    Mr Hillery acknowledged making those statements in the context of Mr Power returning to the yard with scratches on the engine cover of the Manitou which was not reported.  Further, Mr Hillery was aware of other incidents where Mr Power had damaged property.  Because of these incidents, Mr Hillery spoke to Mr Power and advised him that he needed to report any damage to the Manitou and that he would be responsible for damage caused if he was "doing things he should not be doing".
  1. [47]
    Counsel for the Appellant contends that Mr Power's comments were made in the context of his using slings attached to the Manitou to lift objects and argues that Mr Hillery was not adequately examined by Counsel for BIH to properly respond to the context in which the issue was raised.  However, Counsel for the Appellant put the specific proposition to Mr Hillery that the real context of this Stressor was Mr Power causing damage when using a sling "or something like that" to lift materials to which the answer was "no".
  1. [48]
    Finding:  Given my earlier finding that Mr Hillery did not cause, allow, direct or otherwise require Mr Power either expressly or impliedly to use the slings, it follows that I do not accept that the context of the conversation was the operation of slings.  I accept Mr Hillery's evidence and am satisfied that the management action he took was reasonable and taken in a reasonable way.

Stressor 6 - July 2012 to March 2014

The Appellant was directed to operate the crane using a man basket attachment to the crane without controls on [sic] basket.  These occurred at Bowen Car Wash on Richmond Road, to repair broken pipes.  Either an employee of the car wash or a contractor was in the man basket.  In or about January 2014 doing a job at Richmond Road Bowen with two employees of Bowen Earthmoving in [sic] man basket.

  1. [49]
    The first job where Mr Power said a man basket was required was the Bowen Car Wash.  This job required him to lift an employee up in the man basket so that he could change pipes.  He had not used the man basket before.  Mr Hillery allocated him the work and did not provide instruction on the use of a man basket, except to indicate that it needed to be attached.  There were no controls in the man basket and the operator of the Manitou controlled its operation.
  1. [50]
    Mr Power also gave evidence that he used a man basket at Mr Hillery's brother's property.
  1. [51]
    Mr Power was, and remained, concerned that he did not have the appropriate training to operate the man basket, however, he acknowledges being assured by Mr Brogan and "management" that it was "fine".  He denied being told specifically that a man basket can be used without training where the boom does not extend past 11 metres.
  1. [52]
    Mr Hillery gave evidence that a forklift operator can safely and lawfully operate a man basket provided they have received Duty of Care training, which Mr Power had received.  Where a boom exceeds 11 metres, an Elevated Work Platform ticket is required.  The circumstances where Mr Power used the man basket did not require the boom to extend past this length.
  1. [53]
    Mr Hillery said Mr Power had not raised any concerns about either of the jobs identified in the Stressor.  Had Mr Power determined that he was not suitable to perform the work, he should have contacted the office and another operator would have been sent.
  1. [54]
    Under cross-examination, Mr Hillery confirmed that the man basket did not have any controls in it.  He was shown an extract from the Manitou operating and safety instructions entitled, "Platform Operating Instructions" where it states:

"It is forbidden to transport people on the platform using the hydraulic controls in the lift truck's driver's cab (except in the case of rescue)."

  1. [55]
    Mr Hillery accepted the man basket is considered to be a platform but did not believe that the provision applied.  This was because of the use of the word "transport" which suggested transporting people on a job site.  The man basket in question was attached to a crane to lift people up to fix something and then return them to the ground where they would alight.
  1. [56]
    The Appellant contends that the provision from the instruction booklet means that the man basket was not to be operated using controls inside the Manitou cab.  Mr Power raised the concern with his employer because he was not certain he was doing the right thing.  If the Commission finds that it is not permissible to operate the man basket from the Manitou cabin then it cannot be safely concluded that reasonable management action was taken.
  1. [57]
    Finding:  At best, Mr Power's evidence is that he was and remained concerned about operating the man basket despite being assured by the Health and Safety Officer and management that such work was within the scope of his licence.  The evidence establishes that training or licensing additional to that undertaken by Mr Power was not required to operate a man basket. 
  1. [58]
    The Appellant primarily relies on the Manitou's operating and safety instructions for this Stressor's success.  Although it would be unwise for me to form a view about the meaning of this provision given the absence of reliable evidence on the point, I consider the view expressed by the Appellant is problematic.  The evidence establishes that the only way the man basket can be operated is by controls in the cabin.  The view expressed by Mr Hillery is to be the more likely interpretation given the nature of man baskets.
  1. [59]
    Although Mr Power was allocated work requiring the use of the man basket, based on the evidence which I have accepted, I cannot find that the management action was unreasonable and unreasonably taken.

Stressor 7 - 2010 to 2012

The Appellant was required to operate an unregistered forklift on a public roadway despite raising objections to doing so.

  1. [60]
    Mr Power said that at the direction of Mr Hillery he drove the unregistered, two and a half tonne yard forklift "around town" and used it on various building sites.  He was required to do this from 2010 until the second Manitou was bought in June/July 2012.  Mr Power raised the matter a couple of times with Mr Hillery who just turned a blind eye to it.
  1. [61]
    The context, from BIH's perspective, was that approximately once a month the yard forklift was lent to neighbouring businesses to assist them or taken for maintenance.  The distance travelled was a maximum of 100 metres.  Mr Hillery accepted that Mr Power expressed concern over driving the unregistered forklift on the road.  Mr Hillery told Mr Power that he could either drive down the median strip or if he felt uncomfortable doing this he (Hillery) would do the task himself.  Despite that advice, on occasion, Mr Power continued to drive the yard forklift to neighbouring businesses.
  1. [62]
    Mr Power denied that Mr Hillery said he would do the job himself.
  1. [63]
    Mr Hillery said he would not have accepted a job which required the yard forklift to be driven into town and used on building sites.
  1. [64]
    Finding:  The Commission accepts that Mr Hillery asked Mr Power to drive the unregistered yard forklift to neighbouring businesses.  This was initially to be done by driving it on the road.  Such activity is unlawful.  The Commission further accepts, however, that Mr Hillery gave him a choice as to whether to drive it locally.  Despite that option being presented, Mr Power continued to drive it on the road.
  1. [65]
    I do not accept that Mr Power was required to drive the yard forklift into town and use it on building sites.  I prefer Mr Hillery's evidence on this point.  I also note that Mr Power said that he did this before the second Manitou was bought.  However, BIH had a Manitou at that point, which was used to perform forklift work.
  1. [66]
    This Stressor has not been substantiated.

Stressor 8 - omitted.

Stressor 9 - considered as part of Stressor 2.

Stressor 10 - January to July 2012

The Appellant was subjected to taunting, bullying and antisocial behavior by a colleague (Rowan Nelmes) and despite reporting those difficulties to Paul Hillary, management action either did not occur or if it did occur it was inadequate.

  1. [67]
    Mr Power claims that another employee, Rowan Nelmes:
  • harassed him in the yard;
  • painted and scratched his name on scaffolding and other equipment;
  • giggled and pointed at him while in the yard; and
  • said "you're not stressing Colin", i.e., poked fun at him for being stressed.
  1. [68]
    Mr Power said he reported to Mr Hillery that Mr Nelmes had painted his name on scaffolding.  Mr Hillery told Mr Nelmes to stop it.  However, Mr Nelmes then scratched his name on the forklift and scribbled paint on scaffolding.  He subsequently raised concerns with Mr Hillery in a meeting on 23 May 2013 which Mr Power secretly recorded.
  1. [69]
    Mr Nelmes acknowledged spray painting Mr Power's name on scaffolding.  Mr Hillery gave him an official verbal warning about graffiti in the workplace.  Mr Nelmes was aware that both his and Mr Power's names had been scratched on a forklift but denied he was responsible for it.  He did not recall poking fun at Mr Power about being stressed but acknowledged he may have said "don't stress about it".
  1. [70]
    Mr Hillery confirmed that he had disciplined Mr Nelmes for spray painting Mr Power's name on the scaffolding and graffiti in general.  Mr Hillery was unaware of any other graffiti by Mr Nelmes.
  1. [71]
    The recording of the meeting on 27 May 2013 was played and admitted into evidence.  The Appellant contends that Mr Hillery failed to enquire about the particular concerns of Mr Power and either took no action or alternatively inadequate action in response to the issues being raised and despite Mr Power telling Mr Hillery, "it is boiling to a very serious situation".  BIH contends that a broad range of issues was discussed at the meeting.  As Mr Power did not make a complaint, no further action was required from Mr Hillery.
  1. [72]
    Finding:  The Stressor is that Mr Power was subject to "taunting, bullying and antisocial behaviour by Mr Nelmes."   Although Mr Power identified the behaviours of Mr Nelmes that are listed above, except for the incidents where Mr Power's name was spray painted or scratched onto equipment, his evidence is somewhat vague, especially as this behaviour is alleged to have occurred over a period of two and a half years.
  1. [73]
    The Commission accepts that at the meeting Mr Power was agitated, raised issues about Mr Nelmes and the impact of his behavior on him.  Much of the meeting was about Mr Power's mental health and was not limited to workplace issues.  Although the Appellant submits that the focus should be on Mr Power's comment about "it is boiling to a very serious situation" and Mr Hillery's lack of specific response, in my view the meeting as a whole needs to be considered as it not only provides the entire context of the discussion but also demonstrates the relationship between Mr Hillery and Mr Power.
  1. [74]
    Comments made by Mr Hillery in the recorded meeting suggest he may have had some appreciation that Mr Nelmes was not treating Mr Power appropriately.  However, only one instance of antisocial behavior had been raised by Mr Power with Mr Hillery before that time, that of the spray painting.  The action taken by Mr Hillery in disciplining Mr Nelmes was reasonable and reasonably taken. 
  1. [75]
    It is the case that Mr Hillery did not immediately respond to Mr Power's comment that "it is boiling to a very serious situation" or say that he would address Mr Power's concerns with Mr Nelmes. This is largely because Mr Power continued to raise his concerns, some of which were not work related.  Further, it is difficult to ascertain Mr Power's particular complaints about Mr Nelmes.  The recording nonetheless shows that Mr Hillery was sympathetic to Mr Power.  He reassured Mr Power that he was a valued employee and acknowledged that Mr Power had issues with Mr Nelmes.  He advised Mr Power to tell him immediately if there were problems with Mr Nelmes and suggested a strategy for dealing with Mr Nelmes in the workplace, viz., to be more assertive.
  1. [76]
    Mr Hillery also listened to Mr Power's other issues, including non-work related matters, and expressed concern about Mr Power's mental health.  Mr Hillery was empathetic and recommended Mr Power seek medical advice which Mr Hillery was prepared to pay for initially.  It is clear that Mr Hillery was concerned about the well-being of his employee.
  1. [77]
    The Commission cannot conclude that Mr Hillery's response to Mr Power's identified concerns about Mr Nelmes can be described as unreasonable management action taken in an unreasonable way.

Stressor 11 - omitted.

Conclusion

  1. [78]
    The question of whether a worker has suffered an injury within the meaning of the Act is a mixed question of fact and law on which medical evidence is often helpful but necessarily not decisive.[3]
  1. [79]
    The evidence of Dr Futter is that Mr Power's depression was caused by the stress of him being forced to drive an unregistered forklift.  Driving with loose tine covers was the second significant stressor and Dr Futter notes that Mr Power's General Practitioner described him as depressed at that point.  The third stressor was the safety and legality of operating the crane in situations where a CN licence is required.  Mr Power's issues with Mr Nelmes were considered to be somewhat trivial but were occurring when the issues with the operation of the Manitou without a CN licence were happening.
  1. [80]
    The cross-examination of Dr Futter exposed that he had not been provided with a complete history from Mr Power: he had not told Dr Futter about a number of external matters or had misled him.  Although BIH made submissions about the unreliability of Dr Futter's evidence, no submissions were made about whether the injury satisfied the elements of s 32(1).
  1. [81]
    The Appellant submits that the issues raised by BIH as being potentially significant external factors can be disregarded as they were rejected by Mr Power in his evidence.  The only significant factors in the development of Mr Power's condition were those which occurred at BIH.  As a result, the injury arose out of Mr Power's employment and his employment was the major significant contributing factor to the injury.
  1. [82]
    The difficulty with the Appellant's submissions is that Mr Power has not been found to be a reliable witness.  Moreover, the omissions made by Mr Power may have been relevant to the formation of Dr Futter's opinion.  A medical opinion is only as sound as the facts upon which it was based.[4] 
  1. [83]
    However, Dr Futter noted the importance of the timeline in understanding the development of a patient's symptoms.  The first two significant stressors identified by Dr Futter occurred prior to a major life event for Mr Power: the death of his grandmother.  In fact, by the time of her passing, Mr Power had attended on his General Practitioner for work related stress.  Although there were other matters about which Mr Power did not inform Dr Futter and which may have impacted on the development of his condition, this seemed to be the most significant external event.  In light of this and given  BIH did not explicitly submit that the Appellant had not met the elements of s 32(1) of the Act, I am prepared to find that Mr Power's injury arose out of or in the course of his employment and employment was the major significant contributing factor.
  1. [84]
    The injury is however excluded by the operation of s 32(5) of the Act.  The stressors were not substantiated and Mr Hillery's actions in relation to all of the Stressors were found to be reasonable management action taken reasonably.
  1. [85]
    The appeal is dismissed and the decision of the Regulator is confirmed.
  1. [86]
    In the event the appeal was dismissed, BIH requested to be heard on the matter of costs.  Accordingly, no costs Order is made.  Both the Regulator and BIH are to file in the Registry and provide to the Appellant's Solicitors a draft Order for costs in the amount sought in this appeal no later than 14 days from the date of this decision.  The matter will then be subject to further directions.

Orders

  1. The Appeal is dismissed.
  2. The decision of the Regulator is confirmed.
  3. Costs reserved.

Footnotes

[1] The Manitou is a non-slewing mobile crane, also known as a tele-handler.

[2] Within the listed Stressors Paul Hillary's name has been spelt as shown in the Statement of Stressors.

   Throughout this Decision it has been correctly referred to as Paul Hillery.

[3] Groos v WorkCover Queensland (2000) 165 QGIG 106, 107.

[4] R v Turner [1975] QB 834, 840.

Close

Editorial Notes

  • Published Case Name:

    Power v the Workers' Compensation Regulator

  • Shortened Case Name:

    Power v the Workers' Compensation Regulator

  • MNC:

    [2015] QIRC 192

  • Court:

    QIRC

  • Judge(s):

    Member Fisher IC

  • Date:

    12 Nov 2015

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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