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Simonsen v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 60

Simonsen v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 60

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Simonsen v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 060

PARTIES:

Simonsen, Clyde

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2013/1

PROCEEDING:

Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

2 April 2015

HEARING DATES:

7 and 8 August 2013

MEMBER:

Deputy President Bloomfield

ORDERS:

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

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - psychological/psychiatric injury - whether the injury arose out of or in the course of employment - whether employment was a significant contributing factor - whether psychological/psychiatric condition aggravated in the course of employment - medical evidence - onus of proof - whether management action reasonable and taken in a reasonably way - Applicant's perception of management action - management action reasonable and taken in a reasonable way - psychological/psychiatric condition excluded by the operation of s 32(5) of the Act.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision

APPEARANCES:

Mr S. McLennan, Counsel instructed by Beckey Knight & Elliott, Solicitors for the Appellant.

Ms D. Callaghan, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. 

Decision

  1. [1]
    This is an Appeal by Clyde Simonsen pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator's Review Unit (the respondent) dated
    14 December 2012.  That decision confirmed the earlier decision of WorkCover Queensland dated 31 July 2012 to reject his Application for compensation in respect of a psychological/psychiatric injury said to have developed during the course of his employment with Hunts Automotive Electrical Services Pty Ltd (Hunts Electrical) and another entity known as John Martin & Co* between October 2009 and February 2012.  (*There was no information provided during the proceedings - including the absence of any ABN references on documents and letterheads - to clarify whether this entity was a trading name, Pty Ltd company or a partnership.)  

Issue for determination

  1. [2]
    The issue for determination in this Appeal is whether Mr Simonsen sustained an "injury" within the meaning of that term in s 32 of the Act.  At the relevant time,
    s 32 provided:

  "32Meaning of Injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

  1. (3)
    Injury includes the following—

 …

  1. (b)
    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—
    1. a personal injury;

…

  1. (4)
    For subsection (3)(b), 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.
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  2. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;

…

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."

Nature of Appeal and onus of proof

  1. [3]
    The nature of the Appeal is by way of a hearing de novo.  To succeed on the Appeal Mr Simonsen must satisfy the Queensland Industrial Relations Commission (the Commission), on the balance of probabilities, that his claim is one for acceptance[1].

Participants in the events

  1. [4]
    In order to understand the background and evidence (below) it is necessary to briefly describe those persons who are said to have participated in, or been witnesses to, the events described by Mr Simonsen as causative of his psychological/psychiatric condition, as follows:
  • Clyde Simonsen - after working for 34 years at Pleystowe Sugar Mill Mr Simonsen took six months leave without pay during 2008 to locate other employment when it was announced the Mill was to close.  After unsuccessfully applying for a number of positions he was offered employment as Senior Storeman at John Martin & Co and commenced employment with that firm on 10 November 2008.  He remained in employment until the business went into voluntary liquidation in February 2012;
  • Kim Sharp (subsequently changed to Huygen) - jointly purchased Hunts Electrical, located in Sydney Street Mackay, in March 2006 with her then husband.  Her husband also owned and operated another business, known as "Auto Sparks", at the Mackay Harbour.  After her divorce in early-mid 2010, Ms Sharp became the sole owner of both businesses and merged and moved them to larger premises in Paget (a suburb of Mackay) between June and September 2010.  Ms Sharp managed the new business from that location until it went into voluntary liquidation in February 2012;
  • Mark Dillon - commenced employment as the Spare Parts Manager with Hunts Electrical in approximately 1999 and remained in that position until he left the business in February 2011;
  • Jodie Dee - worked for John Martin & Co for approximately two years during 2010 and 2011, with 18 months of that period at Sydney Street and the last six months at Paget;
  • Amy Tulk - worked with John Martin & Co during 2010 and 2011 (she could not recall dates) of which approximately 5 months was spent in the Sydney Street premises before she moved to Paget;
  • George Vakatini - worked as a Storeman for John Martin & Co for approximately six months, in the initial period of which he was involved in the move of the old businesses, in Sydney Street and Mackay Harbour, to the new premises in Paget;
  • Janette Plant - previously worked for Hunts Electrical for in excess of 20 years and became an employee of John Martin & Co when Mr and Ms Sharp purchased Hunts Electrical from her parents in March 2006.  She performed the role of Senior Administrator and Payroll Officer.  
  • Mrs Maree Simonsen - wife of Mr Simonsen, who sat in on at least one meeting between her husband and Ms Sharp in October 2009.  

Nature and cause of injury

  1. [5]
    By way of Notice of Claim for Damages dated 26 April 2012 solicitors for Mr Simonsen sought compensation for a psychological injury described as "Adjustment disorder with depressed mood and anxiety and/or aggravation of that condition arising out of employment with Hunts Automotive Electrical Services".  The events said to have given rise to the injury were recorded at paragraph [38] of the Notice as "upon my return to work from my fall I have increasingly felt very anxious and depressed due to the way my employer was treating me since injuring myself at work."
  1. [6]
    On 19 February 2013, in response to a Further Directions Order that he file further information outlining the work events that caused his injury, Mr Simonsen provided the following "Statement of Stressors" (small typographical errors corrected and "Stressor" No. 8 repositioned (from No. 6) so as to be in chronological order):

No.

Date

Event

1

06.08.2009

Fell at work broke arm, remained off work until January 2010.  In the four months between the incident and returning to work I met regularly with Kim Sharp to advise progress and status update.

2

07.10.2009

Met with Kim Sharp to discuss report from WorkCover, she advised she has a business to run, implying I was holding her business back. She started to tell me I made too many mistakes and cost money in mistakes.  She advised my computer skills were not up to scratch and continued to imply I was incompetent in my position.  I had not been at work for four months due to my injuries.  After this meeting it was very clear to me that Ms Sharp was wanting me to end my employment with her company.

3

00.11.2009

I made appointments with Ms Sharp every month to keep her updated.  At one meeting Ms Sharp asked if I was suing her.  To which I replied, I had been seeking legal advice in regards to a WorkCover claim.  From this point the relationship declined rapidly and the remarks in regards to what she believed was my incompetence became more regular.  At each and every meeting Ms Sharp indicated I was either incompetent or I should seek further employment.  Ms Sharp repeatedly commented about computer errors.  We agreed that a TAFE course would be advantageous of when she said she would research and arrange it never eventuated.

4

00.12.2009

(amended during evidence

to be October 2009)

I met with Ms Sharp and she presented me with a new contract of employment as it was my intention to return to work in January 2010 as advised my Medical professionals that I now could return. Ms Sharp presented me with a new letter of offer of employment to when my wage had decreased by $7,000 per annum, no fuel card and my position would now be Workshop Store Person as opposed to Senior Store Person.  I asked Ms Sharp why this was being changed and again she replied I was incompetent and am not fit or suited to my previous position.  I advised Ms Sharp I would not sign the offer with the reduction of wages and changes to when she replied then we are back to square one again.

5

04.01.2010

Returned to work after injury recommenced work as Senior Store Person.  Within 7 days of returning to work the person employed in my position as Senior Store Person was discussed (Neil ###).  I recommenced work as normal.  Ms Sharp made no comment about my competence and my wage and title remained the same.  She asked me to return my company issue fuel card.  My fuel card was never
re-issued.

6

00.03.2010

I was carrying out duties in the store when I was approached by two female employees from spares Jody Dee and Amy Tulk who advised me that during a conversation with Ms Sharp she had said she was "trying to get rid of me".  It was very difficult to continue to work and focus when I felt my position was in jeopardy and my income stream to which I support my family.

7

Approx March/April 2010

Lyn McMillan who was employed as Account/Receptionist advised me that she had been told directly by Ms Sharp that she wanted to "get rid of me".

8

00.06.2010

A new person was employed (George Vakatini).  No discussion or meeting was held with me and I was unsure of this person's role, however he commenced work in the store with myself.  Mr Vakatini was issued with a company vehicle and card within his first 14 days of employment of which I was promised the same at my original commencement date to which never eventuated apart from a fuel card which was issued and revoked later.  At around 3-4 weeks of Mr Vakatini commencing work, Mr Vakatini disclosed to me that Ms Sharp had had a meeting with him during which she disclosed it was her intention to dismiss me.

9

00.08.2010

I was called to the office by Ms Sharp and Janette Plant (accounts) during a meeting lasting 15-20 minutes.  Ms Sharp commenced the meeting by saying I didn't appear happy in the workplace and it appeared that I didn't want to be there.  I felt very intimidated and remained very quiet during this meeting.  Janette Plant and Ms Sharp advised that I should go home and speak with my wife about retiring.

10

00.08.2010

I told Ms Sharp that I had spoken with my wife about the meeting on the previous day and that I was not in a financial position to retire.  Ms Sharp has no response she actually acknowledged that I had spoken to her.

 The case for Mr Simonsen

 Relevant background events

  1. [7]
    At the time of commencing his employment with John Martin & Co, Mr Simonsen signed a "Letter of Offer of Employment" which contained the following features:
  • Position offered: Senior Storeperson;
  • A statutory three month probationary period will apply to this role;
  • Remuneration to be $45,000 per annum, plus a vehicle when one becomes available;
  • Hours of work are 7:30 am until 5:00 pm or as required; and
  • A fuel card will be supplied until a suitable vehicle becomes available.

 Stressor one - broken arm

  1. [8]
    After tripping on a mat at work on 6 August 2009 Mr Simonsen fell and broke his left humorous.  X-rays showed a minimally displaced spiral fracture of the proximal shaft.  He was given morphine for pain and a U-slab was applied together with a broad-arm sling.  He was discharged with a WorkCover certificate which specified he was not to undertake any duties for a period of one month, after which he was to be reviewed by his general practitioner.  He was also prescribed Panadeine Forte. 
  1. [9]
    On 10 August 2009 Mr Simonsen presented to One Stop Medical Centre complaining of severe pain.  His sling was adjusted and a prescription for Tramal was prescribed for the pain.  Two days later he again attended at the medical centre, this time seeing Dr Prinsloo, complaining about severe pain and side effects from his medication.  He was admitted into hospital for pain management and further x-ray.  This showed a comminuted butterfly fracture of the proximal humorous with some overlap and moderate dorsal angulation of the fragments.  Mr Simonsen was referred to an orthopaedic specialist who stabilised the fracture and applied a Plaster of Paris slab.  He then saw Dr Prinsloo again on 27 August 2009 in relation to pain and difficulty sleeping, when Stilnox was also prescribed. 
  1. [10]
    Under cross-examination Mr Simonsen acknowledged that one of the matters he thought a lot about before he went back to work on a suitable duties program, in early November 2009, was whether he would be able to return to work at all and earn a livelihood, especially since he had performed manual work virtually all his life. 
  1. [11]
    He also agreed he was concerned it took him five months before he could return to work and acknowledged that even when he saw a Dr Dorgeloh on 4 June 2010, nearly 10 months after his injury, he reported that his left shoulder constantly ached, he had difficulty sleeping and had weakness in the arm.  He still (at the time of the trial) had to be careful how much weight he lifted because his arm still hurt. 

Stressors two, three and four - discussions with Ms Sharp

  1. [12]
    Rather than being three discrete events, as recorded above, the evidence strongly suggests that the stressors described by Mr Simonsen occurred over the course of a number of discussions he had with Ms Sharp during October 2009.  Further, the sequence of events, as recorded above, does not always match Mr Simonsen's oral evidence about the same matters.
  1. [13]
    In connection with this group of stressors, Mr Simonsen gave the following evidence:
  • for quite some time after he broke his arm he was unable to drive a vehicle and relied upon his wife to drive him to and from appointments;
  • after a visit to a medical practitioner his wife would drive him to John Martin & Co so that he could drop off his WorkCover certificate;
  • on one such occasion he met with Ms Sharp who told him that she had heard he was going to see a solicitor about his arm and asked him whether he was suing her?  In response, both he and his wife said "No", and told her they were only going to the solicitor to obtain legal advice;
  • during one visit Ms Sharp offered him a new Employment Contract which offered him a position as spare parts or workshop storeman, dropped his salary by $7,000 per annum, contained no mention of a motor vehicle and required him to return his fuel card.  It also contained a new "statutory" probation period of one month, which she did not explain;
  • while he was still in her office he looked at it and told her he was not going to sign it;
  • he did not want to sign the document "because I felt I was being downgraded, humiliated, and it really give me a kick in the guts";
  • while Ms Sharp told him the position she had offered him was going to be at the Harbour, which would have added an extra 10-15 minutes travel each way, she did not tell him it was only a temporary position.  He thought he was going to be there full-time;
  • although he could not remember whether it was on the same day or a different day, Ms Sharp said she was giving him a new Employment Contract "because she was blaming me for mistakes on the computer.  She reckons I was making mistakes on the computer.  She turned around and said she had a business to run and they were going to give me training on the computer which never ever happened";
  • he could not recall whether Ms Sharp told him whether he had a choice to sign the new Employment Contract or not;
  • after leaving the meeting with Ms Sharp he showed the new Employment Contract to his wife, who was sitting outside in the car.  When he was not able to advise her whether Ms Sharp could alter his employment conditions or not they decided to visit their solicitor, which they did two or three weeks later;
  • the new employment offer "made me feel a lot worse because I feel I was being intimidated, being picked on and it give - you know, just downgrading… it made me feel the - nausea, sick in the gut and didn't want to get out of bed, didn't want to go to work.  It's just - just knocked me"; and
  • he went to see his doctor and she put him on Lexapro, an anti-depressant.
  1. [14]
    Under cross-examination, Mr Simonsen agreed that he found the transition to the new job at John Martin & Co somewhat difficult, with a steep learning curve, saying "Yes.  I really can't handle changes".  He also agreed he had difficulty operating a computer.  While grudgingly acknowledging that Ms Plant provided him with in-house training on the computer in relation to his work role he also claimed that both Ms Sharp and Ms Plant had told him they were going to send him off to TAFE to receive computer training, which had not eventuated.  However, he also acknowledged he made no effort himself to upgrade his computer skills. 
  1. [15]
    Mr Simonsen also volunteered that he used to go home from work worried about "whether I did this properly at work.  Whether I did this or I was supposed to do this, and all that sort of stuff", which became worse after he broke his arm because he was in pain and could not sleep. 
  1. [16]
    In terms of his work performance, Mr Simonsen agreed that it would be fair to say that while he was working at John Martin & Co his computer skills were not up to scratch.  While agreeing that he asked Ms Plant to make stock adjustments on the computer he also said "it wasn't on a frequent basis" and he only asked her "to fix a few up…I never did it all the time.".  
  1. [17]
    In response to questions about what Ms Sharp might have actually said to him in relation to his allegation that she told him she had a business to run and his mistakes were costing her money and holding her business back, Mr Simonsen initially appeared to agree that what he had recorded in Stressor number two (above) was his perception of her comments but then appeared to become a little unsettled and distressed at the answer he had provided, falling silent and being offered an adjournment.     
  1. [18]
    Mrs Simonsen said that on one occasion she waited in the car for about twenty minutes for her husband to return after she had taken him to his workplace at Sydney Street.  When he came out he mentioned that Ms Sharp had wanted him to sign a work form which he was not very impressed about.  After they discussed whether Ms Sharp "could do that" she suggested "it might pay to go get a little bit of legal advice about it.  So that's what we did." 
  1. [19]
    On another occasion she was present when Ms Sharp asked her husband whether he was suing her "(a)nd before Clyde could answer I piped up and said 'No, we're not' and that was it." 
  1. [20]
    In response to a question about whether she noticed any change in her husband's mood or demeanour after he was given the new Employment Contract, Mrs Simonsen responded by saying "Yeah.  He was - you know - he'd come home.  You knew when he had a bad day or Kim had said something to him because he's oh - he'd go off and I said look, I don't want to know about it.  You knew - knew he wasn't happy as soon as he walked through the door."  She also said she noticed that when her husband came home he would just sit in his chair "and just sort of mope and wouldn't say anything, wouldn't do anything.  He didn't do these things before he injured his arm."  When he first went to work (at Hunts Electrical) he enjoyed it, but once he broke his arm, that was it.  You couldn't even get him out of bed.  Before he injured his arm "… he was happy there, quite contented, and when - after he broke his arm, he went back, it just all changed.  He just went downhill.  He wasn't happy at all."  Mrs Simonsen also said that although her husband did not complain of feeling depressed she could tell he was depressed "… you could just see in his attitude.  He'd sit there and he'd have a beer, then he'll have another one and …"
  1. [21]
    A couple of weeks after he returned to work he came home and said that Ms Sharp and Ms Plant had called him into the office "and they were talking about asking him to retire.  When he asked me about it I said no, we cannot afford it." 
  1. [22]
    In the course of her cross-examination Mrs Simonsen gave the following evidence:
  • her husband liked to go to work, do a simple job and come home again;
  • he tended to get anxious when he was out of his depth;
  • he didn't like change;
  • her husband would be unhappy if he thought he was not doing a good job;
  • he was in a lot of pain and had difficulty sleeping for quite some time after he broke his arm;
  • he was expressing worry about going back to work;
  • he was expressing frustration because he couldn't do things;
  • had had to ask her to do a lot of things around the house because he could not do them; and
  • he mentioned a few times that Ms Sharp had pointed out a few things on the computer, "mistakes and stuff".

Stressor five - return to work and handing back the fuel card

  1. [23]
    Mr Simonsen said that after he returned to work in January 2010 he was asked by Ms Sharp to return his fuel card, which he did. 

Stressor six - the approaches by Ms Dee and Ms Tulk

  1. [24]
    In response to a question about whether he heard any discussions amongst his colleagues about his job security, Mr Simonsen responded by saying "they used - they come out and told me that - Kim was going to try and get rid of me because I was making mistakes on the computers and … all that sort of… (thing)".  This happened at Sydney Street "and it rolled over to Paget as well".  It occurred at "all different times", but he could not remember when. 
  1. [25]
    Ms Dee "… just came out and said, 'do you know Kim is going to try and get rid of you'".  Ms Tulk told him "the same sought of thing". 
  1. [26]
    Being told this type of thing by his work colleagues "…really - really rocked me, actually.  I felt that I was doing my job pretty good.  Nobody had - nobody had any complaints with me at all and I just - just - just rocked me, just give me the biggest kick in the guts I ever had."  He was now feeling worse than when he went back to work in January.
  1. [27]
    Ms Dee said that she did not recall any specific conversations with other people about whether Mr Simonsen was or was not going to have a job.  However,
    Mr Simonsen had mentioned to her that he thought they were going to get rid of him, which she opined was because "… he was probably treated differently to other employees" in that she thought that Ms Sharp spoke condescendingly to him.
  1. [28]
    Under cross-examination Ms Dee said Ms Sharp had never discussed with her the subject of Mr Simonsen's continued employment.  Ms Dee also did not believe she would have told Mr Simonsen he was going to lose his job saying "I don't think I would say that to anybody.  Even if I did think that, I wouldn't feel comfortable saying to somebody 'you're going to lose your job'". 
  1. [29]
    Ms Tulk said that while she did not recall telling Mr Simonsen words to the effect they were going to get rid of him or let him go, he had expressed some concern to her that he was going to be fired.  When asked whether she made observations about how Mr Simonsen was treated by Ms Sharp she responded by saying "She spoke down to him.  She was quite often rude."  However, she also spoke like that to other employees.   

Stressor seven - Ms McMillan's comments

  1. [30]
    Apart from a reference to "Lyn" as one of a group of work colleagues who allegedly told him Ms Sharp was trying to get rid of him, Mr Simonsen gave no other evidence about Ms McMillan or anything she might have said to him.  Further, Ms McMillan was not called as a witness. 

Stressor eight - Mr Vakatini

  1. [31]
    Mr Simonsen said Mr Vakatini started employment 2 or 3 weeks before "we" moved to Paget, which was in July 2010.  He did not know what role Mr Vakatini had been employed in because Ms Sharp never came out and told him, as the Senior Storeperson.  "There was no conference or no advice that he was starting". 
  1. [32]
    Not long after he started Mr Vakatini told him he had received a fuel card.  Later, he observed that Mr Vakatini had also been given access to a company vehicle in that one afternoon he left his private car in the car park and drove the company car home and then, after that, kept driving the company car to work.  Mr Simonsen said it was not explained to him "one bit" why he wasn't given a company car "but (I) just had that gut feeling that she was trying to get rid of (me)."  He thought that this treatment was humiliating. 
  1. [33]
    Mr Simonsen also said that Mr Vakatini came to him one day and said "… you know, buddy, they're trying to get rid of you?"  Although Mr Vakatini did not say who "they" were, Mr Simonsen thought he was referring to Ms Sharp. 
  1. [34]
    Mr Vakatini said when he asked Ms Sharp about a position she asked him about his current wage and told him that he would get "at least more than that plus a company vehicle… I wasn't given a car to start off with.  It wasn't until much, much later… it was the oldest one in the - in the fleet but yeah, it was a vehicle.". 
  1. [35]
    He also said he believed he was employed as Head Storeman "(b)ecause when I approached her about the job she told me that I would be looking after the - the warehouse.".   It wasn't until later that he found out that Mr Simonsen was supposed to be the supervisor for the warehouse.  In response to a question about whether he had spoken to Ms Sharp regarding his role and who was in charge of the warehouse he said "I was told I would be the head warehouse supervisor before I started, then, yeah, as I worked there - when I found out, I wasn't sure where I was, who was superior to the other.  I couldn't tell.".  When pressed, again, about what Ms Sharp might have said to him at the time he was employed, Mr Vakatini said "… as far as I could remember, I was hired because apparently Clyde had - had an accident; therefore, she needed someone in there to - to take the whole role on… But the conversation I did have with Kim is along the lines of she was not happy with the capacity he was working at and she would like to let him go at some stage, or something along those lines.".  He also repeated his belief that he was hired to take Mr Simonsen's job because "she said I would be hired as the - the warehouse supervisor".
  1. [36]
    Under cross-examination, Mr Vakatini said it was his belief that he would be taking over as head storeman, for two reasons.  Firstly, because of the money Ms Sharp promised him and, secondly, because she told him he would be "looking after the warehouse". 
  1. [37]
    In response to a proposition put to him that he was not appointed as head storeman, and that was not his position title, Mr Vakatini said "I guess I believe I - I was, yeah."  When pressed again as to whether he was appointed to that role he said "I think so". 
  1. [38]
    In response to a question about whether he noticed that Mr Simonsen had difficulties with the computer and with ordering Mr Vakatini said "I would help him as much as I could, I guess.  I was learning just as - as much as he was."  However, he did agree that he was required to assist Mr Simonsen with the computer on occasions.
  1. [39]
    Mr Vakatini could not recall speaking to Mr Dillon and informing him that he needed the use of a vehicle, saying "I don't remember.  I don't remember that."  

Stressors nine and ten - retirement?

  1. [40]
    Mr Simonsen gave the following evidence about these stressors:
  • "When we were at Paget Depot there was Kim, Janette and myself - I got called up to the office and they said to me, you don't seem very happy, you don't want to - feel as though you don't want to be here, have you thought about retiring, and they said to me go home and have a talk to your wife about retiring, which I did, returned the next day and said it's not going to happen about me retiring.";
  • "… as soon as they told me - as soon as they asked me about going home and discuss with my wife I thought to meself this ain't going to happen"; and
  • after discussing the matter with my wife "I just went back to them, back to Kim and said we really can't do it.  Can't afford it."
  1. [41]
    In response to several questions about how he felt in relation to the conversation with Ms Sharp and Ms Plant, Mr Simonsen gave the following evidence:
  • during the meeting "I was on edge all the time.  I was pretty emotional.";
  • "I didn't know what to expect.  I thought they were going to sack me there and then.  Didn't know what was going to come out of the meeting."; and
  • he had never raised the issue of retirement with anyone before Ms Sharp canvassed it with him during the course of the meeting. 


Evidence of a general nature

  1. [42]
    Mr Dillon said that Ms Sharp told him, not long after Mr Simonsen returned to normal duties in January 2010, "she was considering getting rid of him because he was messing up paperwork and not getting things done properly and he couldn't lift what was required to be lifted."  While Ms Sharp told him the mistakes involved things like paperwork being incorrectly filled out and goods being sent to incorrect end users, "I never saw any of it, no.  I never received any phone calls from end users saying they hadn't received stock or anything had gone amuck.". 
  1. [43]
    When Mr Vakatini started employment it was Mr Dillon's "take" that he was employed as an assistant to Mr Simonsen in the stores "but then I was subsequently told otherwise.".  Mrs Sharp told him she hired Mr Vakatini "because Clyde was making so many mistakes and that she was considering getting rid of him and George was going to take his role."  This was not long after Mr Vakatini started employment.  A little while later he was talking to Mr Vakatini during smoko and Mr Vakatini told him "… he didn't like the idea that he was going to be taking Clydie's job but he was - he had been informed that Clydie was going, he would be taking over the stores and that he would be getting a car and a fuel card, which I knew nothing about until he mentioned it to me.". 
  1. [44]
    Mr Dillon also said that after the business moved over to Paget there was constant gossip amongst the staff, especially between Jodie Dee and Amy Tulk who sat in front of his office, about Kim Sharp having had enough and that Clyde would be "moving on.".  He took all of these conversations "with a grain of salt" because he had heard it so many times.  Ms Sharp had also told him, while they were still at Sydney Street, that she was sick of Mr Simonsen.   
  1. [45]
    In the course of his cross-examination Mr Dillon gave the following evidence:
  • his relationship with Ms Sharp was not on a good level when he left and he "didn't really care whether (he) saw her again or not.";
  • it was reasonable to suggest that if Ms Sharp had some concerns about the performance of one of her staff members she would discuss it with other members of the management team;
  • however, it would not be "exactly right" to suggest that if Ms Sharp had some concerns about Mr Simonsen's performance she would discuss them with him;
  • Ms Sharp never mentioned Mr Simonsen's computer problems to him and "I didn't see Clydie having a problem with the computer";
  • if Mr Simonsen was having problems he would expect that Mr Simonsen would have come and talked to him about it;
  • Mr Simonsen didn't come and discuss it "because there was no problem with the computer… I don't think that was an issue at all.".

Mr Simonsen's evidence about his psychological/psychiatric assessments

  1. [46]
    In the course of his cross-examination Mr Simonsen was asked a number of questions about external events which occurred during the course of his employment as well as his attendance, at the Request of his Solicitors, with several psychologists and psychiatrists.  In relation to the external events he acknowledged:
  • some time prior to his accident, possibly around June 2009, his son was diagnosed with kidney problems;
  • at around the same time Ms Sharp found him crying out the back of the building;
  • Ms Sharp asked him if he was upset and he informed her that he was upset about his son's medical condition;
  • that event "caused a little bit of stress", but not a great deal of stress (as suggested by Ms Callaghan);
  • at around about the same time as the above events his sister-in-law was killed in a hit and run accident;
  • his wife was diagnosed with breast cancer in mid - late 2010; and
  • his mood deteriorated considerable at that time (i.e. mid-late 2010). 
  1. [47]
    In response to questions asked about his attendance on Dr Tonya Plumb, a Psychiatrist (see below), Mr Simonsen gave the following evidence:
  • he was referred to Dr Plumb by his Solicitors and not because he was seeking help in relation to his psychological condition;
  • some of the things he mentioned to Dr Plumb as causing his distress were:
    • he had been promised a car and a fuel card and did not receive them;
    • a few weeks after returning to work from his injury his boss told him to go home and talk to his wife about leaving work;
    • every staff member except him was taken down to the new workshop and his workmates told him that the boss had told them she was going to sack him;
  • he told Dr Plumb he could not shake off the feeling he was being blamed for his accident, telling Ms Callaghan "well, I felt that Kim was more or less blaming me for falling over this mat and breaking my arm…that's my opinion over it";
  • he told Dr Plumb he felt that his employer was trying to get rid of him, but did not tell Dr Plumb that his employer had said that she was trying to get rid of him;
  • he did not tell Dr Plumb that Ms Sharp was telling him, or implying, that he was incompetent;
  • he did not mention that Ms Sharp was pointing out his mistakes on the computer to other staff members; and
  • he could not remember telling Dr Plumb that other employees, being Amy Tulk, Jodie Dee and Lynn McMillan, were telling him he was going to be sacked.
  1. [48]
    In relation to his visit to see Dr Karunakaran, a Consultant Neuropsychiatrist (see below), Mr Simonsen gave the following evidence:
  • he was referred to Dr Karunakaran at the request of his Solicitors and not because he was seeking attention for his psychological condition;
  • he told the doctor:
    • he thought he might have made the wrong choice of job (telling
      Ms Callaghan "Well, I didn't know I was going to fall over and break me arm.  That's a risk you've got to take, I suppose.");
    • he was extremely anxious about his performance and worried about possible mistakes he might make;
  • he did not remember mentioning anything about a new Contract of Employment or a drop in wages;
  • he did not mention Ms Tulk, Ms Dee or Ms McMillan telling him that
    Ms Sharp wanted to get rid of him;
  • he did not mention the meeting with Ms Sharp and Ms Plant;
  • he did not mention that a matter of days before his meeting with
    Dr Karunakaran he had been the subject of a complaint of sexual harassment by a female employee and had met with Ms Sharp "for discussion and a warning"; and
  • he told Dr Karunakaran there were no other stressors in his life apart from the work stressors he mentioned above.
  1. [49]
    In relation to his visit to Dr Futter, a Psychiatrist (see below), Mr Simonsen gave the following evidence:
  • his appointment with Dr Futter had been arranged by his solicitors;
  • his purpose in attending the appointment with Dr Futter was to receive an assessment of the stressors that had led to his psychological condition;
  • he told the doctor:
    • his left arm was aching most of the time;
    • his failure to perform work properly was openly discussed in front of other employees;
    • a motor vehicle and promised salary was not forthcoming, but he had been given a fuel card for a short period of time before it was taken away;
  • he did not remember mentioning anything about a new Contract of Employment;
  • he did not remember mentioning anything about being distressed by a potential drop in wages;
  • he did not mention anything about Ms Tulk, Ms Dee or Ms McMillan telling him that Ms Sharp wanted to get rid of him;
  • he did not mention anything about Mr Vakatini; and
  • he did not remember mentioning anything about the meeting with Ms Sharp and Ms Plant during which retirement was discussed.

Statement of Stressors, dated 31 May 2012

  1. [50]
    In the course of his cross-examination, Mr Simonsen was asked a number of questions about a Statutory Declaration he signed on 31 May 2012, in relation to the Stressors listed in his Notice of Claim (see paragraph [5] above), which recorded the events said to have caused his injury, as follows:
  • being told he was making mistakes on the computer;
  • being blamed for the number of customers declining; and
  • his employer telling other employees that he was making mistakes.
  1. [51]
    In connection with this document, Mr Simonsen confirmed that the following matters were not mentioned as contributing to his injury:
  • the new Contract of Employment;
  • the threat of a drop in wages;
  • Ms Tulk, Ms Dee and Ms McMillan telling him that Ms Sharp wanted to get rid of him;
  • his interactions and discussions with Mr Vakatini; and
  • the meeting with Ms Sharp and Ms Plant.

Further Statement of Stressors, dated 23 July 2012

  1. [52]
    Two months later, on 23 July 2012, a further sworn Statement was provided to WorkCover in the course of which Mr Simonsen responded to material submitted by Hunts Automotive on 19 June 2012.  In the course of this Statement Mr Simonsen swore (two typographical errors corrected):

"1. I do not accept the version of Kim Huygen with respect to the complaints I made to her concerning the work environment generally though I felt I was being singled out at work due to changes in amenities which existed when I started work with the company on the 10th of November 2008.  At that time I was promised a motor vehicle and fuel card.  Later I was not provided with a motor vehicle and when I returned to work in 2010 I was asked to return the fuel card.  Also on an occasion where my wife and I were present in Kim's office she asked me as to whether I was considering commencing proceedings against her when we had only sought advice from our Solicitor.  I naturally felt stressed by these enquiries. 

  1. Notwithstanding that mistakes in the work place were discussed as referred to by Kim I felt that I was singled out by her in relation to computer mistakes which I may or may not have made due to problems I was experiencing with my eye sight due to glaucoma.
  2. My wife in May 2011 was diagnosed from suffering a serious medical condition and I sought to attempt to increase my work hours and income to cover anticipated medical fees and costs with my employer but this proved unsuccessful.
  3. Attitude from Kim towards myself was not sympathetic as a consequence I was concerned as to my employment future with the company and this caused me considerable stress and anxiety."

Medical evidence

Dr Rosalette Prinsloo - General Practitioner (called by Mr Simonsen)

  1. [53]
    In a Report to Mr Simonsen's Solicitors dated 22 December 2009, Dr Prinsloo reported seeing Mr Simonsen on 12 and 27 August, 2 and 16 September, 14, 16, 21 and 30 October, 6 and 13 November and 11 and 22 December 2009. 
  1. [54]
    Aspects of her Report of particular relevance to the present proceedings are as follows:
  • "On Wednesday October 14 2009, Clyde reported that his arm was mobilising better on the physiotherapy, but he was very stressed about his employers attitude - very negative - this led to nausea and vomiting, depressive signs - not wanting to get out of bed, feeling teary, emotional and with a deep sense of feeling worthless.  Clyde was still not fit for duty.
  • On Friday October 16 2009, I evaluated Clyde again.  His arm was still sore and he tried to drive but could not put the car in reverse.  The surrounding redness and swelling was subsiding.  Work offered alternative duties.  This concerned Clyde as it meant no car.  Thus Clyde had to get transport to harbour himself (his wife works and was not always available to drive him around) and it also involved a payroll cut.  Management consisted of requesting a workplace assessment and supportive treatment for stress and early depressive features.  Clyde was also going to try herbal remedies for stress.
  • On Wednesday October 21 2009, Clyde was severely depressed and still had a very sore arm.  Treatment consisted of ongoing physiotherapy and referral to an Occupational Therapist.  Medication given was Mobic 15mg/d for pain and Clyde was commenced on Lexapro-antidepressant.  The diagnosis of adjustment disorder with depressive and anxiety features were made. 
  • On Friday October 30 2009, Clyde's arm was slowly improving.  He reporting being able to do more, but still had swelling and significant pain after moderate activity.  He was going to start a suitable duties program the next week on a Wednesday (as this is the only day that his wife can drive him to work).  Clyde was still not able to change the gears in his car (a Ute).  Clyde was feeling very anxious and depressed re way employer is treating him and future prospects.  The employer also wanted a letter stating that his eye sight was good enough to work.  Clyde had attended dr. Hornsby a few days ago and had received a good report.
  • On Friday 6 November 2009, Clyde reported that he coped with his first day back at work.  His arm was still a bit sore, but he felt more optimistic about the future. 

…

  • To summarise, Clyde suffered a comminuted butterfly type fracture of the Left proximal humeral shaft on 6/08/2009, due to an injury at work.  This healed slowly but steadily over 4 months, with the added complication of adjustment disorder with both depressive and anxiety features.".
  1. [55]
    Under cross-examination Dr Prinsloo said Mr Simonsen told her he was very stressed and worried about his employer's attitude when she saw him on 14 October 2009.  At that time he had been sleep deprived for months and was worried about his finances.  The following discussion then ensued between Ms Callaghan, who represented the Regulator, and Dr Prinsloo:

"Just repeat those factors that you were saying you understood to be contributing to Mr Simonsen's mental state?---Okay.  Well, the - what you've got to understand with Mr Simonsen, he does not talk a lot, right?  The consultations were usually 10 minutes, 15 minutes max.  So it is fast.  But I had the patient did not complain about stressed or - being stressed or depressed before the 14th of October.  Right. But I have observed that from the time of the fracture until then, but you can expect that with anybody who's - as I say, is in constant pain.  His fracture wasn't - it moved after the initial mobilisation.  It is a difficult fracture to treat.  So I could see the effect of the chronic pain on him.  I could see the effect of the sleep deprivation on him.  Right.  But on the - that is my personal observation.  Right.

Okay.  And you mentioned something else about some financial difficulties?---Well, I got the impression that he really needed to have the job and that exact amount of pay; otherwise, they were not going to be able to meet their commitments.  Although he didn't say it but he just - he said he was extremely worried about having a pay cut and - but what he specifically said is he was worried about that employer's attitude and what worried him is that even though they had a new plan, it felt like they were putting him on a one-month probation.  He said the employer wanted a new contract and he felt that that was more of a demotion, because his benefits was being cut. And that was the first time he's actually voiced his symptoms of depression, saying he didn't want to get up out of bed in the morning, he felt anxious, nausea and vomiting and he felt depressed.

Okay. Is it fair to say that at that time your clinical impression was that pain was a major component of Mr Simonsen's mental state?---Yes, but what tipped the balance was how he felt his employer dealt with him that week.

Okay?---Previously, we coped without the need for antidepressants. We just treated the pain well, made sure he had a good night's sleep and he was able to cope with that.".

  1. [56]
    In the course of her re-examination Dr Prinsloo agreed with the proposition put to her that people who break their arm don't usually become depressed because of such injury, saying "no, no.  And what concerned me is as the arm improved clinically, his depressive symptoms did not improve.  They got worse. … I would have expected him, as the arm felt better and he had a bit more movement, for his mood to improve with that, and that did not happen.". 

Dr Tonya Plumb - Registered Consulting Psychologist (called by the Regulator)

  1. [57]
    In a Report to Mr Simonsen's Solicitors dated 10 October 2010, Dr Plumb said
    Mr Simonsen denied having any previous mental health problems prior to the current symptoms which he stated had only happened since the workplace incident in August 2009.  According to him, he had begun to experience symptoms shortly after the injury and they had worsened on his return to the workplace. 
  1. [58]
    Dr Plumb reported that Mr Simonsen told her that after a few weeks of returning to work his boss told him to go home and talk to his wife about leaving work.  He also told her that when the company moved to its new location (in Paget) everyone else except him was taken down and shown it.  He stated that "his workmates told him that when they were taken down to the workshop, the boss had told them that she was 'going to sack him'".
  1. [59]
    In the course of her Report to Mr Simonsen's Solicitors, Dr Plumb wrote:
  • Mr Simonsen dreaded going to work, as he felt his manager was trying to get rid of him; and
  • Although his workmates were great, he could not shake off the feeling that he was being blamed for the accident.
  1. [60]
    In terms of findings, Dr Plumb wrote that it was her opinion "Mr Simonsen suffers from a Major Depressive Disorder, which appears to have been a sequelae to the work injury in August 2009, and the subsequent return to work.  There are no other major psyco-social stressors in his life…".  She also recorded the following DSM-IV results:

 "Axis I: Major Depression (Severe)

   Without Psychotic Symptoms.

 Axis II:  No diagnosis.

 Axis III: Pain from work injury.

 Axis IV: Difficult work situation."

  1. [61]
    Under cross-examination, Dr Plumb was asked a long and detailed question by Counsel for Mr Simonsen, Mr McLennan, about whether the following facts and circumstances might have been a significant contributing factor to the development of his adjustment disorder with depressive anxiety features, as diagnosed by
    Dr Prinsloo on 21 October 2009:
  • sometime between 5 and 14 October 2009 Mr Simonsen had a meeting with his employer during the course of which he was handed a new Contract of Employment which: 
    • had the effect of demoting him;
    • reduced his salary by about 15%;
    • removed his entitlement to a fuel card and a car when one became available;
    • purported to put him back on probation;
  • it was not explained to him during the meeting that he did not have to sign the contract;
  • he left the meeting not knowing whether he was obligated to sign the contract or not;
  • he was not told that if he did not sign the contract it would not have an effect on his current employment;
  • he subsequently saw Dr Prinsloo on 14 October 2009 and reported that he was very stressed about his employer's attitude, which was said to be very negative, and that this had led to nausea, vomiting and depressive signs - such as not wanting to get out of bed, feeling teary, emotional and with a deep sense of feeling worthless;
  • two days later he returned to Dr Prinsloo and reported that he had been offered alternative duties;
  • the new contract offered alternative duties at Mackay Harbour;
  • he did not have a car and had to rely upon his wife to drive him around;
  • he also reported to Dr Prinsloo that he was trying herbal remedies for stress; and
  • between his workplace injury on 6 August 2009 and prior to his visit to Dr Prinsloo on 14 October 2009 he had not reported to anyone that he was feeling depressed or had depressive symptoms.
  1. [62]
    In response, Dr Plumb said "I'm sure that that would have been very distressing for him and - possibly could have contributed to that (condition)".
  1. [63]
    In re-examination Dr Plumb agreed that none of the information contained in the question asked in paragraph [61] was relayed to her by Mr Simonsen when she saw him on 4 September 2010.

Dr Satish Karunakaran - Consultant Neuropsychiatrist (called by the Regulator) 

  1. [64]
    Dr Karunakaran saw Mr Simonsen on 9 February 2011 at the request of his Solicitors, and prepared a Report to them on the same day.  In the course of his Report, Dr Karunakaran wrote:

"Mr Simonsen admitted that the transition to the new job was somewhat difficult, with a steep learning curve.  In particular, he had difficulty with using the computer.  Mr Simonsen recalled that he was 'shouted at' a few times by the woman who is in charge of computers.  It appears that Mr Simonsen became very anxious and quite self-conscious of his performance.

Mr Simonsen also stated that he was promised $60,000 per annum along with a free car and fuel card prior to joining the company.  However, the company did not honour that commitment, leaving Mr Simonsen disappointed.

…

Mr Simonsen began to feel depressed shortly after his injury.  Symptoms included low moods, preoccupation with work related issues, symptoms of anxiety and poor sleep.  Symptoms have run a fluctuating course over the last 16 to 17 months.  Mr Simonsen feels unhappy when he thinks about his work and regrets having made 'the wrong choice'.  He is constantly preoccupied by thoughts about work and feels that the management is 'picking on him' and wants to get rid of him.  He has become extremely anxious about his own performance at work and constantly worries about any possible mistakes that he may have made.  His anxiety about his work is also affecting his life at home.  He described that he can often get 'cranky and irritable' with his wife and friends.".

…

"1.Whether Mr Simonsen's condition is work related?

Mr Simonsen's diagnosis of 'adjustment disorder with depression and anxiety' is indeed work related.  Mr Simonsen adapted poorly to the new job and its requirements.  He had difficulty in adapting to the new environment, particularly working with computers.  It is unclear whether any practical supports or work related training was provided.  Mr Simonsen's injury happened on this background.  Mr Simonsen felt unwelcome following his return to work.  He also felt that management was planning to terminate his job and were looking for his 'mistakes'.  Mr Simonsen feels that the company's failure to honour its initial promise with regard to the car and the fuel card as further proof of their intentions. 

The mere prospect of going back to work on a Monday morning makes Mr Simonsen extremely anxious.  In summary, it can be stated that the work place has become an extremely anxiety provoking and threatening environment for Mr Simonsen. 

It is important to note that his anxiety and depression is not a direct consequence of his fall.  Problems were there prior to the fall but became magnified after his return from convalescence.".   

…

"6. Prognosis

It is quite clear that Mr Simonsen has difficulties in adapting to his work requirements.  Therefore he is likely to experience continued stress and anxiety at his workplace as long as he feels inadequate.  This has nothing to do with his physical injury.  His psychiatric symptoms are likely to resolve quickly if he resigns from his job and seeks alternative vocation.  His prognosis is guarded if he is to continue in his present job.".  

  1. [65]
    In terms of diagnosis, although Dr Karunakaran wrote that he found no evidence of a Major depressive disorder, past or present, he nonetheless reported the following DSM-IV results:

 "Axis I:  Adjustment disorder with depressed mood and anxiety.

 Axis IV:  Work related stressors."

  1. [66]
    In the course of his cross-examination by Mr McLennan, Dr Karunakaran was asked an almost identical question to that posed to Dr Plumb (at paragraph [61] above).  In response, Dr Karunakaran said:

"I think it is very likely that would be the case and if you look at that same page 2 (of my Report), the history which you asked me to assume is more or less consistent with what I had written in my report and what Mr Simonsen informed me.  After the injury he had difficulty.  He was increasingly preoccupied with work-related issues and that may be consistent with a different kind of contract that you are mentioning and he did indeed make a remark that he made the wrong choice at that point in time and he did articulate a sense that he was getting picked on and, you know, they were trying to terminate him.  He had a sense of grievance about it and, indeed, these issues would have been critical in the development of adjustment disorder.".

  1. [67]
    Mr McLennan also asked Dr Karunakaran to provide some clarification about his prognosis (see paragraph [61] above) and received the following response "…when I questioned Mr Simonsen more it was more his apprehension about the management's intention and in some ways his ability to cope with the altered work arrangements, particularly computers and other kinds of systems. That was dominating in his mind, not his physical inability. I did question him about it and he confirmed that.".
  1. [68]
    In re-examination Dr Karunakaran said that Mr Simonsen did not provide great detail about the matters at work that were troubling him, although he did express concern about whether he had made "the right choice".  However, it was difficult to recall, two and a half years later, what that latter reference might have been in relation to. 

Graham Futter - Specialist Psychiatrist (called by Mr Simonsen)

  1. [69]
    At the request of Mr Simonsen's Solicitors, Dr Futter saw Mr Simonsen on
    5 November 2012 for the purposes of a psychiatric assessment.  In the course of a Report to the Solicitors, dated 19 November 2012, Dr Futter wrote:

"History of Main Complaint

On 6th August 2009 whilst employed as a store man for John Martin and Company, Mr Simonsen tripped in the work place and sustained a fracture of his left humerus. 

Mr Simonsen returned to work on 4th January 2010 and he reports that there was still slight aching of his arm.  On returning to work Mr Simonsen reported that his employer was constantly critical of his work effort and this perceived failure to do his work adequately was openly discussed in front of other employees to the embarrassment of Mr Simonsen.

Mr Simonsen reports that when he first joined John Martin and Company as a store man in November 2008 he had been promised a certain salary as well as a motor vehicle and fuel card.  The motor vehicle and the previously promised salary were never forthcoming and whilst he was given a fuel card for a short period of time this was eventually taken away from him.

As a result of the situation at work Mr Simonsen became progressively more depressed through 2010 and onward.

In February 2012 Mr Simonsen left John Martin and Company and got a job as a store man for VLI Diesel.  He was terminated from this job in August 2012 as the company were cutting back the numbers of employees.

Mr Simonsen reports that he still gets some pain in his left arm and he is depressed.  He reports that he has poor energy and motivation and he has lost interest in things that he previously enjoyed doing.".

…

"Prognosis

Mr Simonsen has now been depressed for over three years.  His condition has now become chronic and the prognosis is poor.".

…

"Discussion

As a result of an injury to his left arm on 6th August 2009, Mr Simonsen was off work for a few months.  On returning to work his left arm was still painful and his employer was highly critical of the quality of his work at the time.  This criticism was done in front of fellow employees and caused Mr Simonsen embarrassment.  He became progressively more depressed and he left that company in February 2012.  Mr Simonsen's job with another company as a store man ended prematurely because of work cutbacks and he has now had to resort to being trained and working as a traffic controller with very long hours and less benefits.

Mr Simonsen's wife was diagnosed with breast cancer in 2011 but by that time he was already depressed. 

Mr Simonsen's ongoing depression will continue to have significant negative impact on his work capacity as well as his capacity to perform activities of daily living.  There have already been significant strains on his marriage and his general social and recreational functioning.". 

  1. [70]
    In response to virtually the same question asked of Dr Plumb (at paragraph [61] above) and of Dr Karunakaran, i.e. about whether he would consider the meeting and the offer of a new Contract of Employment was a significant contributing factor to Mr Simonsen's adjustment disorder or depressive symptoms, Dr Futter responded by saying "I would certainly feel that would be the case, especially since he wasn't made to understand that he didn't have to accept the offer.  It would have come across as a demotion after he had just fractured his humerus.".
  1. [71]
    In addition, Dr Futter opined that the way Mr Simonsen was managed when he returned to work (as recorded in his Report (above)) would have exacerbated any depression that he had at that point in time, "… the way he was spoken to in front of fellow workers was embarrassing to him and certainly would not have done his sense of self-esteem any good.".
  1. [72]
    Under cross-examination by Ms Callaghan, Dr Futter acknowledged that none of the matters raised in the question referred to above were described to him by Mr Simonsen, saying that the only elements that resembled what Mr Simonsen told him was that "the car and salary never happened and the fuel card was taken away".  Further, Mrs Simonsen, who was present to provide collateral history, did not provide any of that information either.  Dr Futter also agreed that at the time he saw Mr Simonsen in November 2011 he was not told about:
  • Mr Simonsen's employer allegedly telling him she wanted to end his employment;
  • a sexual harassment complaint he had to address in February 2011;
  • Ms Dee and Ms Tulk, co-employees, telling him that he was going to be sacked;
  • another employee, who was employed in the stores area, being given a car and fuel card; and
  • his attendance at a meeting with Ms Sharp and Ms Plant at which it was suggested to him that he go home and talk to his wife about retiring.
  1. [73]
    Although he knew nothing about the new contract being offered to Mr Simonsen at the time he wrote his Report in November 2012, Dr Futter nonetheless proffered the view under cross-examination that "… the fractured humerus was the thing that toppled him together with what we have just mentioned regarding the new contract.".  However, when Ms Callaghan reminded him that he knew nothing about the contract when he diagnosed a Major Depressive Disorder in November 2012, Dr Futter agreed that the elements which underpinned his diagnosis, based on what Mr and Mrs Simonsen told him at the time, were represented by the following
    DSM-IV results:

 "Axis III: Ongoing pain in left arm; and

 Axis IV:  Significant concern about his capacity to be gainfully employed in the future."

Evidence called by the Regulator

Ms Sharp

  1. [74]
    Ms Sharp said Mr Simonsen was slow to learn because he was being introduced to a computer system and new procedures.  While he was capable of performing his role he was often slow, with other staff having to pitch in at times to help get freight in or out of the store.  She said "gingerly" would be a good word to describe how he handled the computer work. 
  1. [75]
    Although she was not present at the time Mr Simonsen fell and injured his arm she met with him on a number of occasions in the following months, sometimes with his wife being present.  During these meetings she found it very difficult to obtain a clear answer from him about how he thought his recovery was going and what work he might be capable of performing.  If she did not ask a question or prompt him with options there was basically no communication. 
  1. [76]
    Ms Sharp also said she was in contact with a Mr Sean Ellis from WorkCover about Mr Simonsen's injury and return to work.  In the course of an email to Mr Ellis on 5 October 2009 she expressed reservation about placing Mr Simonsen into a return to work role in his original position because of the potential impact on both the business and Mr Simonsen's recovery.  In her oral evidence she said the position Mr Simonsen normally worked in was quite fast paced and if she had returned him to that position he might have done more damage to himself.  "His lifting capacity was limited and so was his standing capacity, because he was tired.".  As such, she proposed an alternate position of Workshop Stores Person at Auto Sparks at Mackay Harbour. 
  1. [77]
    A job description for this role, attached to the above email, included the following (bold as per the original):

 "WORKSHOP STORES - JOB DESCRIPTION

 FORWARD NOTE: This position was specifically designed to achieve:

  1. Continued Employment within John Martin & Co, given the physical, mental and emotional limitations at this place in time.
  2. Flexibility of Hours for Physio Therapy, Doctors Appointments or Rehabilitation that will have low impact on normal day to day running of the business.
  3. Support for the Workshop and Field Service Manager, Tradesman and Apprentices.  Being in a predominantly male environment similar to the Mill can be beneficial.
  4. Responsibility will be less computer processing, no management of staff, liaison with Freight companies, Clients or Suppliers, therefore less physical impact and stress.
  5. Remuneration is in accordance to the Responsibility and Capacity of the Position.".
  1. [78]
    Later, on Mr Ellis's recommendation, an Occupational Therapist, Ms Sue Lovell, was engaged to conduct a review of the worksite and to help develop a suitable duties plan for Mr Simonsen.  This resulted in a "Suitable Duties Program" being developed with input from Ms Sharp, the Manager of Auto Sparks, Ms Lovell and Mr Simonsen.
  1. [79]
    Ms Sharp was also taken to handwritten notes of a meeting she had with Mr and Mrs Simonsen on 30 October 2009, at which time she was asked to sign some WorkCover forms given to Mr Simonsen by his Solicitor.  Her memory of the meeting, partially prompted by her notes, was:
  • while the meeting was initially just about filling out some forms it progressed to other matters, including:
    • her asking Mr and Mrs Simonsen whether they were going to sue herself or John Martin & Co;
    • a discussion about Mr Simonsen's eye sight (he had Glaucoma) and obtaining a doctor's certificate from an optometrist to confirm he could read the computer screens properly; and
    • Sue Lovell and the outline of the proposed position at Auto Sparks because "it was difficult to convey to Mr Simonsen what his position would be and why it was designed that way.".
  1. [80]
    Ms Sharp said her note "Sue - outline of job/confusion" suggested to her that Mr Simonsen must have expressed some confusion about his job description.  "I had some concern about Clyde's emotional state.  He did become overwhelmed quite easily and with difficult meetings.  Trying to extract … answers from him (about) what was happening was difficult.  And I believe he would have become overawed at the time…". 
  1. [81]
    In response to an objection by Mr McLennan that she should restrict her responses to what she saw or heard and not "believed", Ms Sharp immediately responded "I believe, Sir, that he was overwhelmed at the time.  On a number of occasions we had meetings with Clyde.  This was not an isolated incident.  He would become emotionally overwhelmed and shut down from communication.". 
  1. [82]
    Ms Sharp also said that the last part of her note which read "Sean - will encourage counselling", was a note to herself to contact Mr Ellis to encourage that counselling be provided for Mr Simonsen.  This was because "I was genuinely concerned for him.  I have an employee that I had limited communication with.  His emotional state, it was obvious… prior to his accident, I had concerns when we saw him sitting on a milk crate outside crying.". 
  1. [83]
    In relation to the provision of a vehicle to Mr Vakatini, Ms Sharp said it was her recollection that she was approached by Mr Dillon who said that Mr Vakatini was experiencing transport problems because his son had come to stay and he needed to borrow a vehicle, "to which I said that was fine.".  "It was an old ute (from Auto Sparks) that finally became deregistered.  It was a run around thing that we never kept.".  It was only available for a month or so and Mr Vakatini was allowed to use it because he needed to get to work and home again. 
  1. [84]
    Ms Sharp said that the focus of her attention in relation to Mr Simonsen's employment during the period August to December 2009 was trying to position him in a place where he could perform his duties to the best that he could, physically, and where the general running of the business wasn't impacted.  By relocating him to Auto Sparks it did not impact on anyone's job and the company was able to give him time to go off to physiotherapy.  He also had limited transport so that had to be accommodated as well. 
  1. [85]
    The new facility at Paget was three times bigger than the existing businesses and she anticipated that the business would grow with the acquisition of additional contracts.  Unfortunately, that did not eventuate because several mines went into a distressed state after floods and the business actually lost contracts.  She finished up having a discussion with Mr Simonsen about his physical capabilities and what he wanted to do.  His recovery was slow and the company had accommodated him during his recuperation.  "I needed some form of commitment.  Do I employ more people, do I not employ, do I - what do I do?  How do I reschedule Clyde's capabilities?  We were selling automotive equipment that was weighing in excess of 14 kilograms.  He couldn't lift that.  He couldn't lift - and we were really mindful even months after into 2011, that he didn't lift anything over five or 10 kilograms.  It was always asked 'how are you going? are you sure you can do that?'".
  1. [86]
    Ms Sharp said the "Contract of Employment" provided to Mr Simonsen in October 2009 "… could possibly have been another option to Clyde.  We weren't dismissing Clyde.  We were trying to work with him and his capabilities.".  It also had not been signed by her and, because of that, had not been given to Mr Simonsen as a new contract of employment.  It was an option for a return to work and was not presented as a fait accompli.
  1. [87]
    In the course of her cross-examination, Ms Sharp gave the following evidence:
  • although she had concerns about his slowness in undertaking his tasks, and he received verbal warnings about his performance, Mr Simonsen was not in danger of being dismissed prior to injuring his arm;
  • at one point, coinciding with a change in fuel suppliers in December 2009, she took fuel cards off everybody and did not reinstate Mr Simonsen's, amongst others.  This was because "it was an economic choice";
  • "it seems like" she offered him a new Contract which required him to complete another probationary period;
  • she did not deal with the pays and did not know whether the company or WorkCover was paying him in October 2009;
  • she asked Mr Simonsen to obtain a certificate from an optometrist about his glaucoma because she had performed his job while he was away and seen the mistakes he had been making, "I was worried about his capacity to do his job and to perform it well…";
  • she accepted that during one of her meetings with Mr Simonsen she said words to the effect:
    • I have a business to run;
    • you are making too many mistakes on the computer;
    • your computer skills are inadequate;
    • you are not competent;
  • it was her observation that after Mr Simonsen broke his arm he did not appear to be engaged in the return to work process;
  • as such, she thought he needed to give consideration to what his capabilities were at the time, given his age;
  • consequently, she asked him on a number of occasions "what do you want to do?" but he wasn't always clear and she needed some clarification about his intentions.  This happened right up until she closed the business in February 2012.  "And I helped him - assisted him to find other employment.";
  • she repeatedly asked him what he wanted to do to understand what function he wanted to undertake within the company; and
  • part of the reason she asked him what he wanted to do was because it was her observation that he was unhappy.
  1. [88]
    When challenged with the statement, ostensibly put as a question, "You were asking 'what do you want to do?' to a man you knew was depressed because you perceived him to be unhappy?", Ms Sharp responded by saying "I did.  Do we ignore depressed people?".  She also rejected the proposition that she no longer wanted to employ Mr Simonsen after he broke his arm saying "No, it's not true.  We didn't want to get rid of him.".   In addition, she rejected the suggestion she told Mr Dillon she wanted to get rid of Mr Simonsen saying "That's not the type of vocabulary I would use regarding an employee, is 'get rid of them'.  No, it's - no.". 
  1. [89]
    However, Ms Sharp did recall "on occasions" asking Mr Simonsen to go home and consult with his wife about what he would like to do, because it was a family issue and she needed to be consulted. 
  1. [90]
    In response to a question about her recollection of any conversations she might have had with Mr Vakatini about taking over Mr Simonsen's job and the fact that he would no longer be working there, she indicated she could not recall that conversation, which was not the type of conversation she would have with another employee.  Any discussion about allocation of jobs to people and moving people around would be with managers.  In that respect, she said a conversation she was said to have had with Mr Vakatini about taking over Mr Simonsen's job had to be taken in context.  "I should have used the word 'storeperson's' job instead of 'Clyde's' job.  You know, it's like me saying I'm going to take over this person's job, which is actually their role…".
  1. [91]
    Ms Sharp was also taken to her notes of the meeting of 30 October 2009 with Mr and Mrs Simonsen and the note to herself to speak with Mr Ellis about some sort of counselling for Mr Simonsen.  She agreed her note was based upon her observation of him during that meeting where she recalled him being confused and agitated.  When it was then put to her that the reason he was "confused and agitated" was because she offered him the new Contract of Employment in the week or two prior to the meeting she responded "I think Clyde's confusion had more - was not solely based on the contract but on his recovery, what was happening in his life at the time and his mental demeanour at the time as well.  There was - there was a lot more to this man than just a Contract that was confusing Clyde.  He'd just been through something quite traumatic for him and that…" before being interrupted by Mr McLennan with a further proposition to the effect that her answer was that the contract was part of it, but not all of it, which she agreed was correct.
  1. [92]
    In re-examination, Ms Sharp said that the draft "Workshops Stores - Job Description" (see paragraph [77] (above)) had been developed taking into account her knowledge of Mr Simonsen's capabilities at the time and the flexibility needed to allow him to attend his physiotherapy.  She had been undertaking work in the stores, while he was away, and had consulted with her managers and believed that what was proposed "was a doable task".  At that time she was also expecting Mr Simonsen to come back to work "otherwise I wouldn't have invested time into doing this.".
  1. [93]
    In response to a question from the Commission as presently constituted about the purpose of her communications with Mr Ellis on 5 October 2009, Ms Sharp indicated it was to make sure Mr Simonsen was actually being looked after, to establish whether what the company was doing was correct and to ensure she was doing what she was required to do "for looking after Clyde.".

Ms Janette Plant

  1. [94]
    Ms Plant said she had quite a lot to do with Mr Simonsen on a day-to-day basis because it was only a small business.  It was her opinion that Mr Simonsen wasn't competent at his job before he broke his arm on 6 August 2009 in that he made a lot of errors and she was required to make computer adjustments to correct those errors.  His performance after he returned to work in January 2010 "… was pretty much the same.  Nothing changed.".
  1. [95]
    In response to a question about how she found Mr Simonsen's demeanour prior to August 2009 she said "he was a pretty sort of pessimistic type of person.  There's a bit of doom and gloom.  He wasn't very happy.".  Ms Plant also said his demeanour did not change after he returned to work. 
  1. [96]
    In response to other questions put to her in examination-in-chief, Ms Plant said:
  • she thought Ms Sharp followed all the correct rehabilitation procedures in relation to Mr Simonsen's return to work after his injury;
  • she was not aware of any intention expressed by Ms Sharp about sacking, dismissing or getting rid of Mr Simonsen;
  • she was not aware, at any stage, of Ms Sharp pointing out mistakes made by Mr Simonsen to other employees;
  • she did not recall any meetings where the subject of Mr Simonsen's retirement was raised by Ms Sharp;
  • she did not observe any occasions on which Ms Sharp spoke down to
    Mr Simonsen; and
  • she did not notice any occasions where Ms Sharp appeared to single
    Mr Simonsen out.
  1. [97]
    In cross-examination Ms Plant said the stock adjustments she was required to make, to correct mistakes made by Mr Simonsen, involved both incoming and outgoing stock.  "He would probably average about five (mistakes) a day, probably average, and it would take me - well, a couple of minutes for each one.".  Ms Plant also confirmed that while she had provided some in-house training to Mr Simonsen he had not received any external training.
  1. [98]
    In addition to confirming that she had no recollection of a conversation involving herself, Ms Sharp and Mr Simonsen about his retirement, Ms Plant also said she did not remember Ms Sharp asking Mr Simonsen what he wanted to do in relation to his employment.

Findings and conclusions

 General observations and comments

  1. [99]
    It would be quite apparent from even cursory reading of the evidence recorded above that the vast majority of the Stressors now identified by Mr Simonsen as causative of, or contributing to, the development of his psychological/psychiatric condition were not recounted as such during the course of his assessment by
    Dr Plumb in September 2010, his assessment by Dr Karunakaran in February 2011 and his assessment by Dr Futter in November 2012. 
  1. [100]
    Relevantly, while it might be argued some of the identified Stressors were not obvious to Mr Simonsen when he saw the first two doctors, it is nonetheless very clear that by the time he saw Dr Futter he had sworn two statements, in May and July 2012, in which he recorded the events said to have caused, or contributed to, the development of his psychological/psychiatric condition.  Given this circumstance, I have not given any particular weight to the responses given by any of the identified doctors to the long and detailed question put to them by Mr McLennan (see paragraph [77] above) during the course of his examination of each of the medical practitioners.  Not only was the question difficult to follow, it also contained a series of propositions which had either not been established by the evidence or involved some features which were not a true reflection of the evidence. 
  1. [101]
    Nonetheless, I shall proceed to deal with the Appeal on its merits, having regard to the overall evidence presented as well as the submissions of respective Counsel. 
  1. [102]
    However, before I do that, it is necessary to make two short comments about the evidence.  Firstly, Mr McLennan clarified during his opening that Mr Simonsen was not alleging that he was criticised about his mistakes in front of other employees.  That happened behind his back.  Secondly, I have disregarded the evidence of Mr Dillon on the basis that it did not accord with the evidence given by other witnesses (e.g. he did not see Mr Simonsen making mistakes on the computer) and because he appeared to be intent on presenting as much evidence as he could to damage Ms Sharp's position (e.g. volunteering that he knew nothing about why
    Mr Vakatini might have been given the use of the utility). 
  1. [103]
    Although Mr Simonsen's Statement of Stressors includes reference to breaking his arm after a fall at work on 6 August 2009 and remaining off work until January 2010, there is nothing in his submissions (with the possible exception of paragraph 61*) to suggest it is being argued that his psychiatric or psychological condition arose out of this injury.  Rather, the submission is to the effect that Mr Simonsen's injury is directly related to his employer's conduct towards him during both his recovery from injury and the subsequent return to work (see paragraphs 1, 58, 100 and 101).  (*The submission at paragraph 61 is a response to submissions by the Regulator and appears to have been made as a reason why the Regulator's argument should be rejected rather than in support of any argument to the effect that Mr Simonsen's Appeal should be allowed because his psychological/psychiatric condition developed (wholly or partially) as a sequalae to his physical injury.)
  1. [104]
    Further, the Appellant's submission also makes it clear that the question of causation of Mr Simonsen's injury has been divided between the period leading to the diagnosis of his psychiatric or psychological condition by Dr Prinsloo on 21 October 2009 and the period following that date. 
  1. [105]
    In paragraph [12] (above), I mentioned that Mr Simonsen's oral evidence was not always consistent with the sequence of events recorded in his Statement of Stressors.  In addition to reinforcing that comment, it is also necessary to highlight that a number of points made in the Statement of Stressors were not addressed during the course of his oral evidence, including:
  • his reference in Stressor 2 to Ms Sharp telling him he made too many mistakes and cost money in mistakes;
  • his reference in Stressor 3 to the relationship between he and Ms Sharp declining rapidly after she asked him if he was suing her;
  • his reference in Stressor 4 to Ms Sharp telling him that his role was being changed because he was incompetent and not fit or suited to his previous position; and
  • his allegation in Stressor 4 that Ms Sharp told him after he refused to sign the new Contract of Employment "then we are back to square one again".
  1. [106]
    Further, although Mr Simonsen mentioned "Lyn" as one of the employees who allegedly told him Ms Sharp had told her that she wanted to get rid of him,
    Ms McMillan was not called as a witness.  As such, given my observations (below) about the evidence of Ms Dee and Ms Tulk about this same issue, I do not intend to give any further consideration to Stressor 7.
  1. [107]
    In the course of his submissions Mr McLennan described Mr Simonsen as "an unsophisticated, salt-of-the-earth, man".  I am content to adopt that description as a fair representation of Mr Simonsen with the added comment that he seemed to often misunderstand issues canvassed with him and questions put to him, with a number of matters having to be re-phrased or asked again.   

Did Mr Simonsen suffer a personal injury?

  1. [108]
    Given that the Regulator argues that "the issue on Appeal is whether Mr Simonsen suffered a psychological injury that arose out of his employment where employment was a significant contributing factor and, if so, was it excluded by section 32 of the WCRA" I am content to accept that Mr Simonsen has a diagnosed psychological/psychiatric condition, which appears to have been originally diagnosed on 21 October 2009 by Dr Prinsloo. 

 Did Mr Simonsen's personal injury arise out of, or in the course of, his employment?

  1. [109]
    The Regulator does not appear to argue that Mr Simonsen's personal injury did not arise out of, or in the course of, his employment in that it submits:

"79. The appellant has failed to prove on the balance of probabilities that the matters set out in the ten stressors were either factually correct, more than perceptions of the appellant, not mere blemishes or not reasonable management action taken in a reasonable way, as set out above.

 80. The appellant has failed to prove on the balance of probabilities that the matters set out in the ten stressors, as a whole or individually, were significant contributing factors to the development of his psychological condition."

  1. [110]
    As such, I shall proceed on the basis that the question of whether Mr Simonsen's condition arose out of, or in the course of, his employment is not at issue.

 Was Mr Simonsen's employment a significant contributing factor to his injury?

  1. [111]
    It is apparent from Dr Prinsloo's cross-examination that her diagnosis of adjustment disorder with depressive and anxiety features was arrived at after her discussion with Mr Simonsen on 21 October 2009 during which he recounted "how he felt his employer dealt with him that week (see paragraph [57] above)".  Further, Dr Plumb's diagnosis of a Major Depressive Disorder (see paragraph [60] above), after assessing him on 4 September 2010, was partially based on a "difficult work situation".
  1. [112]
    Consequently, I am prepared to accept that Mr Simonsen's employment was a significant contributing factor to his psychological/psychiatric condition.  

Is Mr Simonsen's psychological or psychiatric injury withdrawn by the operation of s 32(5)(a) of the Act?

  1. [113]
    I am content to approach this question in two parts, essentially adopting the approach of Mr McLennan where he discusses the impact of the events both prior to, and after, Dr Prinsloo's initial diagnosis of a psychological/psychiatric condition on 21 October 2009.  In terms of the operation of s 32 of the Act, the events described in Stressors 3, 5, 6, 8, 9 and 10 need to be considered in the context of whether they might constitute an aggravation, or multiple aggravations, of the originally diagnosed psychological/psychiatric condition.

The events prior to 21 October 2009 (i.e. Stressors 2 and 4)

  1. [114]
    While Mr McLennan was critical of the evidence given by Ms Sharp about her meetings with Mr Simonsen during early - mid October 2009, which he suggested was "sparse", and the failure of Ms Callaghan to put Ms Sharp's version of events to Mr Simonsen during his cross-examination, it is to be noted that the existence of the new Contract of Employment (Exhibit 6), was only disclosed a day or so before the trial - being several days after Ms Callaghan interviewed Ms Sharp in the course of her preparation for trial.  Further, the use which Mr McLennan intended to make of the previously non-disclosed document was (also) only made apparent during the course of Mr Simonsen's examination-in-chief.
  1. [115]
    Consequently, I do not propose to draw any adverse inferences about the fact Mr Simonsen was not cross-examined in any detail about this document, or the circumstances by which it might have come into his possession, nor the fact there was only limited examination-in-chief of Ms Sharp about this same document.  
  1. [116]
    Rather than deal with each of the identified Stressors in sequence I propose to record my broad findings in connection with the events of early - mid October 2009 before recording my conclusion as to whether Mr Simonsen's initial injury is excluded, or not, by the operation of s 32(5) of the Act. 
  1. [117]
    The evidence establishes that Ms Sharp was conversing with Mr Ellis, of WorkCover, by at least 5 October 2009.  On this date she forwarded him a Position Description for the Workshop Stores role at Mackay Harbour (see paragraph [77] above), with a request that he (Ellis) participate in a meeting between herself, Mr Simonsen and the Work Shop Manager at Auto Sparks on the following Wednesday (7 October 2009).  Unfortunately, the evidence does not establish whether the proposed meeting took place nor when the Position Description was provided to Mr Simonsen.
  1. [118]
    Based on Dr Prinsloo's evidence it might be the case that this document was provided to Mr Simonsen prior to 14 October 2009.  However, it might also be the case, based upon her written record of Mr Simonsen's evaluation on 16 October 2009, that the document was presented after their consultation on 14 October 2009 and before she saw him again on the 16th.
  1. [119]
    Equally, it is not clear when the new Contract of Employment might have been presented to Mr Simonsen.  While Dr Prinsloo's oral evidence, based on notes she had but which were not disclosed, was to the effect that this happened prior to 14 October 2009 this might have been an error on her part because the details of both the new Contract and the position at Auto Sparks at Mackay Harbour were recorded as having been disclosed to her by Mr Simonsen on 16 October 2009.  Prior to that date there was only a vague reference in Dr Prinsloo's Report about Mr Simonsen being "very distressed about his employer's attitude - very negative." 
  1. [120]
    In any event, the following matters were clearly established by the evidence:
  • Mr Simonsen was an unsophisticated gentleman who had difficulty understanding and interpreting information and matters raised with him;
  • he was not a particularly good communicator and it was difficult to engage with him or get him to respond to questions (not only was this my observation it was also the evidence of Ms Sharp and Dr Prinsloo);
  • he found the transition from the sugar Mill to his new employment, involving use of a computer, difficult and challenging;
  • by mid-October 2009 he had been in considerable pain and sleep deprived as a result of that pain since early August 2009;
  • he was lying awake at night thinking about work and mistakes he might or might not have made on the computer;
  • Ms Sharp had been undertaking a substantial part of his duties during his absence;
  • she had noticed many mistakes that he had made prior to breaking his arm;
  • she was in discussions with Mr Ellis about a return to work plan for Mr Simonsen, during the course of which she developed a proposal that he work in a less onerous position at Auto Sparks involving hours of work and a salary to be agreed;
  • during the course of at least one, possibly two, meetings with Mr Simonsen between 5 October and 16 October 2009 she canvassed a return to work program which would entail him working at Mackay Harbour;
  • during the meeting(s) she informed Mr Simonsen that he had been making too many mistakes on the computer and he was lacking in computer skills;
  • at this meeting, or another meeting at around that time, she tabled, for discussion, the new Contract of Employment;
  • this Contract canvassed a less stressful role, less hours (7:30 am to 3:30 pm instead of 7:30 am until 5:00 pm or as required), a reduced salary (based on the less senior position and less hours), return of his fuel card and a one month probationary period;
  • the significance of the inclusion of the one month probationary period was not appreciated by Ms Sharp in that her evidence was to the effect that a probationary period is to allow an employee, and their employer, to decide whether each of them is comfortable with the arrangement; and
  • the Contract was not tabled on a "take-it or leave-it basis" - it was to facilitate a discussion with Mr Simonsen about his capacities and future intentions.
  1. [121]
    Although Mr McLennan was highly critical of the decision taken by Ms Sharp to canvass an alternative position/return to work program with Mr Simonsen at the time she did, and in the manner she did, I do not share that opinion.  Equally, I do not share his opinion that it was incumbent upon Ms Sharp to "increase the level of clarity of communication that would otherwise be required" during the course of her meeting(s) with Mr Simonsen because of his medical condition and her observations of him. 
  1. [122]
    While Mr Simonsen, on Ms Sharp's observation, might have become emotionally overwhelmed and shut down from communicating during meetings, that does not lead to the result that Ms Sharp was not entitled to meet with him to try to explore his state of health and the likely date of his gradual (and ultimate) return to work.  Further, and more relevantly, Mr Simonsen does not suggest that the timing of the meeting, or the way it was conducted, was a source of stress.  His complaint, as revealed in the records of Dr Prinsloo and what he recorded in his Statement of Stressors, was about what Ms Sharp told him during the meeting(s), i.e. the content. 
  1. [123]
    In that regard, I have come to the conclusion that the vast majority of the concerns identified by Mr Simonsen were his interpretation of either the events or issues which might have been conveyed to him, rather than the reality.  For example: in Stressor 2 he records that Ms Sharp's comment to the effect that she had a business to run implied "I was holding her business back".  In the same Stressor he records his belief that, after the meeting, "it was very clear to me that Ms Sharp was wanting to end my employment with her company".  In fact, the reverse was true.  Ms Sharp was concerned about Mr Simonsen's welfare.  This resulted in her making representations to Mr Ellis about the provision of some form of counselling after a later meeting, on 30 October 2009.  Equally, she was concerned to try to identify a return to work role for Mr Simonsen which would not put further mental stress on him or aggravate his physical condition. 
  1. [124]
    Relevantly, Ms Sharp was not a medical practitioner.  Her knowledge of Mr Simonsen's condition at the relevant time was that he had broken his arm and he was still in some pain and "coping with difficulty at home" (see medical certificate of 16 September 2009).  She was not aware he might have been sleep deprived or otherwise stressed about his condition.  As such, she cannot be criticised for seeking to canvass the topic of Mr Simonsen's physical condition at the time, as well as his likely future intentions. 
  1. [125]
    In the end result I have come to the conclusion that the actions of Ms Sharp in engaging in discussion with Mr Simonsen about an alternate role at Auto Sparks, either on a permanent basis or during the course of a return to work program, as well as the manner in which that discussion was conducted, involved reasonable management action taken in a reasonable way.  Such conclusion also applies to the various points contained in the new "Contract of Employment" provided to Mr Simonsen.  The proposal was to facilitate a discussion.  It was not presented as a fait accompli and no pressure was applied to Mr Simonsen to sign it.  Indeed, on his evidence, he made it clear to Ms Sharp during the course of the meeting in which the document was handed to him that he did not intend to sign it.  Not surprisingly, Ms Sharp would have understood from his response that she did not need to provide any further comment or clarification about the proposal to Mr Simonsen.  He had emphatically rejected it.  There was nothing more to discuss.
  1. [126]
    Quite apart from Ms Sharp's actions and behaviours constituting reasonable management taken in a reasonable way, it is also apparent that parts of the recorded Stressors relate to Mr Simonsen's perception of Ms Sharp's reasonable actions and behaviours as well as his own interpretation of those actions and behaviours.
  1. [127]
    Accordingly, given all of the above, the psychological/psychiatric condition diagnosed by Dr Prinsloo on 21 October 2009 is excluded from the definition of injury at s 32(1) of the Act by the combined operation of s 32(5)(a) and (b) of the Act. 

The events after 21 October 2009 (i.e. Stressors 3, 5, 6, 8, 9 and 10)

  1. [128]
    In line with the procedure adopted above, I propose to record my broad findings in connection with the post 21 October 2009 Stressors before recording my overall conclusion as to whether Mr Simonsen's psychological/psychiatric condition was aggravated by one or more of those Stressors and, if so, whether s 32(5) of the Act operated to exclude the aggravation(s) from the definition of injury at s 32(1). 
  1. [129]
    Stressor 3 - The events recorded in this Stressor appear to relate to the meeting between Mr and Mrs Simonsen and Ms Sharp on 30 October 2009, in the course of which Ms Sharp enquired as to whether she or John Martin & Co were being sued. 
  1. [130]
    Based upon my consideration of the evidence I do not consider any of the matters (as recorded in this Stressor) which Mr Simonsen complains about as being anything other than reasonable management action taken in a reasonable way. 
  1. [131]
    Firstly, Ms Sharp's enquiry about whether she was being sued was one which any manager of a small business might reasonably make of an injured employee if they were being asked to sign legal documents prepared by the employee's solicitor.  Further, there was no suggestion there was any rancour involved or that Ms Sharp was, somehow, attempting to pressure Mr and Mrs Simonsen to not take that course of action if that was what they proposed to do.  On Mrs Simonsen's evidence (see paragraph [19] above), Ms Sharp asked a simple question and received a simple answer, being "No, we're not". 
  1. [132]
    In terms of Mr Simonsen's allegation to the effect that "at each and every meeting Ms Sharp indicated I was either incompetent or I should seek further employment" the allegation is more expansive than the evidence.  While it is clear that Ms Sharp certainly did point out mistakes Mr Simonsen was making on the computer he also acknowledges that his computer skills were not up to scratch.  As such, there is nothing wrong with a manager of a business, particularly the owner of the business, pointing out continued mistakes to an employee and, perhaps, expressing their frustration about the frequency and/or nature of the complaints at the same time. 
  1. [133]
    In relation to Mr Simonsen's complaint to the effect that Ms Sharp told him "at each and every meeting" that he should seek further employment, I am inclined to think that Mr Simonsen exaggerates the number of times he might have been spoken to about his mistakes and that he also recounts his interpretation of what Ms Sharp might have discussed with him rather than what she actually might have said.  On Ms Sharp's evidence, which I accept, she spoke to Mr Simonsen on a number of occasions between 2010 and 2011 about what he might want to do in relation to employment with John Martin & Co.  This was because his demeanour showed he was unhappy, he was making mistakes on the computer and he could not perform the full range of duties he had previously performed because of on-going issues with his left arm.  In those circumstances, particularly since it was a small business and she had supported him through his recuperation after his return to work in early January 2010, it was entirely reasonable for her to seek to clarify Mr Simonsen's future intentions.  Importantly, while Mr Simonsen might have perceived, or believed, that Ms Sharp was contemplating the termination of his employment it is highly relevant that he did not suggest she had threatened, or in any way proposed, the termination of his employment.
  1. [134]
    Finally, I do not attach any particular significant to the fact that Ms Sharp might have spoken to Mr Simonsen about undertaking a course at TAFE to improve his computer skills.  While he claims Ms Sharp told him she would research and arrange such course there is no suggestion he went back to her to ask her what was happening.  In any event, if he was truly interested in attending such a course he could have researched the matter himself. 
  1. [135]
    In all of the circumstances, I have come to the conclusion that there was nothing in Stressor 2 which did not involve reasonable management action taken in a reasonable way.  As such, this Stressor, even if it did aggravate Mr Simonsen's condition, is removed from the definition of injury at s 32(1) of the Act by the operation of s 32(5). 
  1. [136]
    Stressor 5 - Given that Mr Simonsen recommenced work in his previous role of Senior Storeperson, at the same salary, the only matter which appears to be a Stressor is the fact he was asked to return his fuel card.  In my view, this involved reasonable management action taken in a reasonable way for several reasons.  Firstly, the fuel cards were taken from a number of employees, not just Mr Simonsen, for economic reasons.  Secondly, the fact that Mr Simonsen's initial Letter of Offer included provision for a fuel card did not prevent Ms Sharp, as his employer, from acting to alter that contract by the provision of reasonable notice.  It was up to Mr Simonsen to decide whether he wished to continue his employment under the new conditions.  While he might not have been aware of it at the time, his decision to return the fuel card when requested to do so and continue working for John Martin & Co constituted acceptance of the altered conditions of employment.  This Stressor would thus be excluded by the operation of s 32(5)(a) of the Act. 
  1. [137]
    Stressor 6 - Neither Ms Dee nor Ms Tulk supported Mr Simonsen's evidence to the effect they told him that Ms Sharp had mentioned to them that she proposed to "get rid of" him.  Rather, the reverse was true.  It was Mr Simonsen who told them he believed Ms Sharp proposed to terminate his employment.  As such, the alleged conversations recorded in this Stressor could not have acted to aggravate Mr Simonsen's condition because they did not occur.
  1. [138]
    Stressor 8 - As noted above, certain matters raised by Mr Simonsen in his Statement of Stressors were not established in evidence.  As such, I shall limit my consideration of the matters raised by Mr Simonsen in Stressor 8 to those points which were canvassed during the proceedings. 
  1. [139]
    In terms of his complaint that no-one came to discuss Mr Vakatini's employment and role before he commenced, there was no obligation on Ms Sharp to hold a meeting or discussion with Mr Simonsen about her intention to employ Mr Vakatini.  Mr Simonsen might have been called the "Senior Storeperson" but there was no suggestion that he was the supervisor of any other staff or had any role in deciding whether an additional employee was to be employed and, if so, in what role.  At worst, Ms Sharp's failure to advise him that Mr Vakatini was commencing employment might be regarded as a blemish.  Accordingly, this aspect of the Stressor would also be excluded by the operation of s 32(5)(a).    
  1. [140]
    Although there is a conflict in the evidence about the circumstances by which Mr Vakatini might have come to have the use of one of the company's utilities for a period of time I have decided that it is not necessary for me to resolve that difference.  This is because, at the end of the day, the decision about whether a particular employee is to be allowed to use a company-owned vehicle is a decision which the management of that company is entitled to take.  On Ms Sharp's evidence, which I accept, the period involved was relatively short after which the vehicle was not re-registered for economic reasons.  This aspect of the Stressor would also be removed by the exclusion at s 32(5)(a). 
  1. [141]
    Mr Vakatini's evidence about the circumstances of his employment, and the role he was to perform, was most unsatisfactory and unconvincing.  Further, he did not confirm, as Mr Simonsen alleged, that he told Mr Simonsen that Ms Sharp had told him it was her intention to dismiss him.  Given these circumstances, as well as Ms Sharp's explanation that if she had mentioned to Mr Vakatini he would be taking over Mr Simonsen's "job" she was really referring to his "role", I am not satisfied that the alleged conversation occurred in the terms Mr Simonsen alleges. 
  1. [142]
    In all of the circumstances, including the fact that no mention of Mr Vakatini was made to Dr Plumb, Dr Karunakaran or Dr Futter, I am not satisfied that this alleged aspect of Stressor 8 occurred, either in whole or in part.  As such it could not have contributed to any aggravation of his condition.  
  1. [143]
    Stressors 9 and 10 - I am unclear what it is that Mr Simonsen claims was the source of his stress insofar as these two Stressors are concerned.  While he talks about feeling very intimidated and remaining quite during this (single) meeting, where his apparent unhappiness with his work situation and the subject of retirement was discussed, there is no suggestion he was badgered or pressured to retire by Ms Sharp.  Rather, his evidence was that Ms Sharp told him of her concerns about his apparent attitude to work and asked him to go home and talk to his wife about whether he should retire, which he did.  The next day he told Ms Sharp that he was not in a good enough financial position to retire, which she acknowledged and accepted.
  1. [144]
    Having considered all of the evidence, I have reached the conclusion that the actions of Ms Sharp in convening a meeting with Mr Simonsen to talk about his future intentions, in circumstances where he obviously was not happy at work and where his work capacity was still restricted by his earlier injury to his arm, constituted reasonable management action taken in a reasonable way.  

Overall Conclusion

  1. [145]
    Given my various findings above, the Appeal by Mr Simonsen must be refused. 
  1. [146]
    His originally diagnosed psychological/psychiatric condition, on 21 October 2009, arose out of reasonable management action taken in a reasonable way and/or his perception of reasonably management action taken in a reasonable way and is, therefore, excluded from the definition of injury by the operation of s 32(5) of the Act. 
  1. [147]
    The events post 21 October 2009 (i.e. Stressors 3, 5, 6, 8, 9 and 10) either did not occur, involved reasonable management action taken in a reasonable way, were his perception of reasonable management action taken in a reasonable way or were not established by the evidence.  Consequently, there are no "live" Stressors which can be considered as having constituted an aggravation of Mr Simonsen's originally diagnosed psychological/psychiatric condition. 
  1. [148]
    Mr Simonsen is to pay the Regulator's costs of, and incidental to, the Appeal.  In the absence of any agreement, leave is reserved to the Regulator to have the Commission determine the amount of costs involved. 
  1. [149]
    I determine and Order accordingly.

Footnotes

[1] Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision at [2].

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Editorial Notes

  • Published Case Name:

    Simonsen v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Simonsen v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 60

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    02 Apr 2015

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Kevesther Pty Ltd v Workers' Compensation Regulator [2024] QIRC 1952 citations
Simonsen v Workers' Compensation Regulator [2015] ICQ 301 citation
1

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