Robinson v Workers' Compensation Regulator
[2016] QIRC 32
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- Unreported Judgment
- Robinson v Workers' Compensation Regulator[2016] QIRC 32
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Robinson v Workers' Compensation Regulator[2016] QIRC 32
Robinson v Workers' Compensation Regulator[2016] QIRC 32
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Robinson v Workers' Compensation Regulator [2016] QIRC 032 |
PARTIES: | Robinson, Saul (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2014/56 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 15 March 2016 |
HEARING DATES: | 26 March 2015 17-19 August 2015 2 November 2015 (Appellant Submissions) 30 November 2015 (Respondent Submissions) 7 December 2015 (Submissions in Reply) |
HEARD AT: | Sarina - March 2015 Mackay - August 2015 |
MEMBER: | Deputy President Swan |
ORDERS |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury arose out of or in the course of employment - whether employment was a significant contributing factor - medical evidence concerning Appellant's mental health - Appellant's evidence not accepted - events described by Appellant had not occurred - Appellant has not discharged the onus of proof. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32 Simon Blackwood (Workers' Compensation Regulator) v Mary Adams [2015] ICQ 001 Cyonara Snowfox Pty Ltd v Commissioner of Taxation [2012] FCAFC 177 at [117], per Greenwood, Collier and Middleton JJ Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028 Groos v WorkCover Qld [2000] 165 QGIG 106 Prizeman v Q‑Comp [2005] QIC 53 Cowen v Bunnings Group Ltd [2014] QSC 301 Jones v Dunkel [1959] HCA 8 |
APPEARANCES: | Mr P. Moore, Counsel instructed by Eureka Legal for the Appellant. Mr S. McLeod, Counsel directly instructed by Workers' Compensation Regulator. |
Decision
- [1]This appeal is made by Mr Saul Robinson (the Appellant/Mr Robinson), pursuant to s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) to confirm a decision to reject Mr Robinson's application for compensation.
- [2]This Appeal is conducted as a hearing de novo and the onus rests with the Appellant on the balance of probabilities.
- [3]In accordance with s 32 of the Act, to succeed the Appellant must demonstrate the following:
- That he was a worker (as defined by section 11 of the Act);
- that he suffered a personal injury (as defined by sub-section 32(3) of the Act), which includes an exacerbation;
- that the injury arose out of, or in the course of, his employment and that his employment was a significant contributing factor to the injury.
- [4]The date of Mr Robinson's alleged decompensation was 27 October 2011 and the nominated Stressors occurred "in or about June 2011 to 27 October 2011."
- [5]At the material time the Appellant's decompensation occurred, namely on 27 October 2011, s 32 of the Act relevantly provided:
"32 Meaning of injury
- (1)An injury is a personal injury arising out of, or in the course of, employment if the employer is a significant contributing factor to the injury."
- [6]It is not contested that Mr Robinson was a 'worker' for the purposes of the Act.
- [7]Mr Robinson had worked for Aurizon for 21 years up to 23 September 2012. For the last five years of his employment he worked as a train driver at Jillalan.
- [8]The medical evidence produced refers to Mr Robinson suffering from a psychological/psychiatric condition, however the medical opinions differ as to a specific diagnosis and whether events at Mr Robinson's work place actually did occur as reported by him.
Witness Evidence
For the Appellant
- Saul Robinson – the worker and train driver at Jillalan;
- Emmanuel Ellul - Training Management and Improvement Officer at Aurizon;
- Tony Yard - Area Controller for Aurizon;
- Henry Enge - Locomotive Driver at Jillalan between June and October 2011;
- Dr G Larder - Psychiatrist.
For the Regulator
- Peter Giddy - Locomotive Driver for Aurizon;
- Michael Moule - Area Controller for Aurizon;
- Dr Hodgens - General Practitioner;
- Dr Caniato - Psychiatrist.
Stressors
No | Date | Event |
1 | Various dates commencing in or about June 2011 | In the presence of, and hearing of, the Appellant and various of his co-workers, Mr Giddy called the Appellant 'cocksucker', 'homo' and 'knob jockey' and made imputations about his sexuality. |
2 | Various dates from June 2011 to February 2013 | Various of the Appellant's co-workers took to using the nicknames created by Mr Giddy and also started using the terms in reference to the Appellant. |
3 | One day in late August 2011 | On a handover at Hail Creek from the Appellant and Mr Chris Fulton to relief crew of Mr White and Mr Giddy, Mr Giddy yelled "Hey Knob jockey" to the Appellant and grabbed his lunchbox and walked off. |
4 | One day in late August or early September 2011 | In the smoko room in the presence of co-worker Mr Steve Grendon, Mr Giddy called the Appellant names including 'cocksucker' and repeated that when challenged by the Appellant as to the Code of Conduct, "whatever cocksucker." |
5 | One day in late August or early September 2011 | In the Jillalan Control Room, in the presence of Mr Tony Yard, on learning that the Appellant wished to speak with Mr Yard, Mr Moule responded, "Why? Can you taste something on Yardy's cock?" Mr Moule repeated the insult when the Appellant asked him what he had said. |
6 | One day in September 2011 | At Coppabella the Appellant was spoken to by a co-worker (who the Appellant does not know) who said, "Hey cocksucker! I hear that's your new name down at Jillalan." |
7 | One day in mid September 2011 | The Appellant and Mr Fulton were called to a meeting with four more senior staff in the office at Coppabella. One of whom, Mr Neville Murchie, to the amusement of the senior staff, touched on the issue of rumours about the Appellant and then asked after his neck (the site of surgery to the Appellant). The other senior staff present were in hysterical laughter at this point. |
8 | Various dates from about June 2011 until 27 October 2011 | The employer failed to take action to cease the Appellant being continually exposed to name calling and other offensive behaviours whilst the Appellant performed his duties at work. |
Stressors
- [9]
"It is an error for a Tribunal in cases where the boundaries of the application have been set by a document such as a Statement of Stressors to go beyond that boundary when making findings. It was an error to find that the conduct (offensive as it was) operated to cause Ms Adams' injury simply because this conduct was likely to have caused distress to Ms Adams".
Stressor 1
- [10]Mr Robinson's evidence was that in June 2011, Mr Giddy (another train driver) started calling him a 'cocksucker' and occasionally 'knob jockey'. Mr Robinson says that in June 2011, Mr Giddy used these words about three times a week and frequently thereafter.
- [11]Mr Robinson reported this to Mr Ellul (Training Management and Improvement Officer) and hoped that he would speak to Mr Giddy.
- [12]When speaking to Mr Ellul, Mr Robinson initially said that he thought Mr Giddy was joking and he expressed no desire on his part to cause Mr Giddy any trouble at work.
- [13]However, after speaking to Mr Ellul, Mr Robinson said the language on Mr Giddy's part continued for another few months.
- [14]Mr Ellul said that he had spoken to Mr Giddy and his evidence was:
"I said Saul's approached me and told me that he's not happy with the way - with the names you called him and I want you to - I'd like you to refrain from doing it to him. He's not having - it's affecting him and Peter said, well I - I didn't know it was affecting him. That's just what we sort of do here and I said, well, we don't do it anymore, so can you not do it and he said, yeah. He was - apologized. He was apologetic, but he didn't realize that it affected Saul in that way" [T3-64].
- [15]Mr Giddy denied that Mr Ellul had ever raised an issue concerning Mr Robinson with him [T4-45]. He also denied ever calling Mr Robinson a "cocksucker" or a 'homo', adding that 'homo' was never a word he used.
- [16]While claiming that he had not directly called Mr Robinson a 'cocksucker' or "knob jockey", he did not deny using those words on occasions at the workplace and when Mr Robinson may have been in the vicinity, but that they had never been directed at Mr Robinson.
- [17]He did recall saying to Mr Robinson on one occasion "Whose cock have you been sucking to get the local" at a time when Mr Robinson received some benefit in terms of his shifts/or location. Mr Robinson said he did not recall Mr Giddy saying this to him.
- [18]Mr Giddy said that comments like the aforementioned were not uncommon in the workplace when another worker gained some type of benefit. He said that "blokes get around and rub it in each other's noses if they do get made local" [T4-41].
- [19]At one point, Mr Giddy said that Mr Robinson approached him and said words to the effect "You know, what you said to me last week, I don't like it". He claimed that Mr Robinson elaborated upon why he had taken offence at the use of those words. It had related to when he had been working at Coppabella where a former friend was homosexual and he said he had been the recipient of negative comments from other workers as a consequence. Mr Robinson denied that he had ever said this to Mr Giddy. Mr Giddy, after hearing Mr Robinson's explanation, said he again apologized to Mr Robinson.
- [20]Mr Giddy said "I'd apologized for saying that to him and yeah, that was sort of it …
I was genuinely sorry … I didn't go out to insult him or offend him. You know, it was just a - yeah, it was a comment that was made in jest" [T4-41].
- [21]In all, Mr Robinson did not recall this last encounter (i.e. "Whose cock have you been sucking to get the local") and had not nominated it as a stressor.
- [22]This stressor only related to Mr Robinson's interactions with Mr Giddy.
Stressor 2
- [23]The Regular submits that this stressor is not particularized in any way which would permit a proper examination of it.
- [24]The 'various' co-workers were not identified in the nominated stressors.
- [25]In my view, this stressor is unable to be considered due to lack of specificity.
Stressor 3
- [26]There are named workers in this Stressor alleged to have been involved in an event which occurred in late August 2011 at the time of a handover at Hail Creek in which Mr Robinson says he was involved.
- [27]Mr Robinson says that those present with him at that time were Mr Giddy, Mr Fulton and Mr White.
- [28]Mr Giddy denies Mr Robinson's claim that when entering the room where the handover occurred, Mr Giddy said to him "Hey, knob jockey" and then walked away. Mr Giddy stated that he would "not have just made a comment and walked off". The Appellant says that this is telling because Mr Giddy did not actually deny calling Mr Robinson a 'knob jockey'.
- [29]Mr Giddy denied this and said that after he had his conversation with Mr Robinson (referenced in Stressor 1) about his use of certain words, a few other workers spoke to him and said words to the effect "What have you been saying to Saul?... he's going - you know - he reckons you're calling him a cocksucker and all these names". Others told him to be careful because Mr Robinson was out to 'get him'. Mr Giddy said he was "very wary from a certain point not long after the incident - the first incident happened to watch out what I was saying to him. I was certainly not going out of my way to call him names or provoke him in any way" [T4-45].
- [30]Mr Giddy said he would have personally seen Mr Robinson about once every 12 months when they occasionally worked on the same rotation. Mr Robinson's evidence was that he could see Mr Giddy three days in a row and then not for another week. The Appellant states that of Mr Giddy's evidence on this point was not put to Mr Robinson during the course of his evidence in order for him to make a response.
- [31]However, the Appellant put to Mr Giddy in cross-examination that Mr Robinson said Mr Giddy had, on numerous occasions in June through to September 2011, on as many as 20 or even 30 occasions, used the words "cocksucker", "knob jockey" and "homo"
towards Mr Robinson.
- [32]Mr Giddy's evidence was he had never seen Mr Robinson on 20 or 30 occasions over six months. I have accepted Mr Giddy's evidence that both drivers (Robinson and Giddy) did not work on the same link or the same rotation. Mr Giddy said that "we had a permanent 'mates' roster where I was rostered with a single driver. The only time I would probably work with different drivers would be if my mate was on holidays or gone off sick … something like that, where we might work with someone else. We worked 12 hour shift lengths and eight hour local shift lengths" [T4-40].
- [33]I have preferred Mr Giddy's evidence on this point.
- [34]Mr Fulton and Mr White were not called to give evidence.
- [35]Mr Robinson said this incident made him feel "paranoid" as he began to suspect that other workers were calling him a homosexual behind his back [T1-22].
Stressor 4
- [36]The Appellant says that a day prior to Stressor 5 hereunder occurring, Mr Robinson was collecting his smoko bag when Mr Giddy said to him "See you later, cocksucker." Mr Robinson said he asked Mr Giddy "What about the Code of Conduct?" to which Mr Giddy replied "Whatever, cocksucker".
- [37]Mr Giddy said he had not made those comments to Mr Robinson.
- [38]Mr Robinson claimed that Mr Grendon was present at the time. The Appellant says that Mr Grendon's name was on the list of stressors it had submitted, but that he was nominated as a witness for the Regulator. On the second morning of the hearing, the Regulator advised that Mr Grendon was unlikely to be called.
- [39]While the Appellant asserts that a Jones v Dunkel[2] inference can be drawn and its evidence is strengthened by the Regulator's failure to call Mr Grendon, the Regulator states that the Appellant bears the onus of establishing that the claim is one for acceptance under the Act. It says that it would have been more 'natural' for the Appellant to call Mr Grendon to give evidence.
- [40]In considering this point, it is clear that Mr Grendon was named by Mr Robinson as being present when the alleged comments were made. Given the stage the hearing was at (i.e. the second day of hearing where the Appellant had not finalized its case) the Appellant had every opportunity to seek to call Mr Grendon if it so wished. Many concessions had already been given by the Commission in this 'stop-start' matter to the Appellant, and it was a matter for it to determine whether it wished to call for evidence from Mr Grendon. I have not drawn an adverse inference against the Regulator for withdrawing Mr Grendon's name from its witness list.
Stressor 5
- [41]This stressor relates to an alleged event that occurred in late August or early September 2011 in the Jillalan control room. Mr Robinson says that present with him at that time were Mr Yard and Mr Moule. Mr Moule said he had never seen Mr Robinson in the Jillian control room, but he had seen Mr Yard there [T4-27].
- [42]Mr Robinson's evidence was that he had said he wished to speak to Mr Yard and Mr Moule responded, "Why? Can you taste something on Yardy's cock?" Mr Robinson said that Mr Moule repeated the insult when he asked him what he had said.
- [43]Mr Ellul's evidence was that he had previously spoken to Mr Moule who said he recalled having a discussion with him advising him that "we had a mutual friend having personal problems" - the 'friend' being Mr Robinson. Mr Moule had told Mr Ellul that he had not seen Mr Robinson for about 12 months, but he also told Mr Ellul that he would speak to Mr Robinson.
- [44]Mr Moule's evidence was that he had not made the comments as alleged by Mr Robinson [T4-21]. He denied Mr Ellul's evidence that Mr Robinson had discussed with him what "others' were saying about Mr Robinson but he agreed that the discussion included comments about a "mutual friend having personal problems." Mr Ellul believed that Mr Moule's responses concerning Mr Robinson were sincere.
- [45]Mr Yard said the words used by Mr Moule were not said in a joking fashion, but rather in a "demanding" way. While Mr Moule thought the comments were inappropriate he added that people tended to shrug off those comments as the workplace was a "man's environment" [T4-4]. Mr Yard recalled Mr Robinson being surprised by those comments.
- [46]After that incident, Mr Yard had noticed that Mr Robinson had become 'edgy' [T4-4]. The time period after that incident which had elapsed before Mr Yard saw Mr Robinson again was around 3 months [T4-6].
Stressor 6
- [47]This Stressor suffers the same fate as has Stressor 2. There is no particularization of the event - i.e. names of the alleged offender/s and thus makes it impossible for the Regulator to consider it fairly.
Stressor 7
- [48]Mr Robinson's evidence on this point has been documented in paragraphs 42 - 45.
- [49]In mid-September 2011, Mr Robinson was asked to attend the office of Mr Murchie who was a Supervisor at Coppabella. There were also three other senior employees present.
- [50]Mr Robinson said he was nervous going into that office as he thought he might be in trouble and could lose his job [T1-24]. He asked Mr Murchie "What happened?" and he says that Mr Murchie said he was just 'playing with him'. He then told Mr Robinson that he had heard a rumour about Mr Robinson and asked Mr Robinson if there might be any truth to it. Mr Murchie would not tell Mr Robinson the content of the rumour. Mr Murchie, however, did ask Mr Robinson if something had happened to his neck after this neck operation.
- [51]Mr Robinson said nothing had happened to his neck and Mr Murchie, and three others in the room, started laughing. Mr Robinson said he just walked out of the room, but he felt very nervous about the incident and that he had become a "nervous wreck" [T1-24].
- [52]Mr Murchie was not called to give evidence. Mr Robinson's evidence was only that Mr Murchie had referred to a 'rumour' and it was submitted that Mr Murchie would not be called simply for the purpose of attempting to corroborate a perception held by Mr Robinson.
Stressor 8
- [53]Mr Robinson was admitted to Hospital for the day on 27 October 2011. Mr Robinson said a couple of days later he received a telephone call from Mr Moule who abused him by saying that he had 'dobbed him in to Emmanuel Ellul and that he was coming to get me' [T1-31]. Mr Robinson said he telephoned Mr Ellul who told him that he would speak to Mr Davidson. Mr Davidson called Mr Robinson back and told him to keep away from Mr Moule.
- [54]Mr Moule's evidence was that after speaking with Mr Ellul, he determined to contact Mr Robinson to see if he was alright. His further evidence was "I made a phone call to Saul and at the end of it I - Saul was quite aggressive and cranky and I did say to Saul that I'd catch up and we'd talk face to face. Then Emmanuel Ellul came back to me about an hour later and said that I'd threatened him" [T4-28].
- [55]Sometime after speaking to Mr Ellul, Mr Robinson met with Mr Davidson. He advised Mr Davidson that he had been pacing backwards and forwards saying "huh" all the time and that he was going to see a Psychiatrist. He told Mr Davidson the reason he was doing this related to Mr Giddy calling him names.
- [56]Mr Robinson could not recall telling Mr Davidson about Mr Moule and the issues identified in Stressor 5.
- [57]Mr Robinson said his purpose for speaking to Mr Davidson was that he thought he could have a talk to Mr Giddy, but in doing so, Mr Robinson did not wish Mr Davidson to think that he wanted Mr Giddy to lose his job.
- [58]Mr Robinson recalled Mr Davidson telling him he would "keep it under me [sic] hat. If I was having any mental problems, they'd put me off the road" and Mr Davidson then advised Mr Robinson to stay away from Mr Giddy.
- [59]The Regulator states that Mr Robinson had not told Mr Davidson exactly what Mr Giddy was saying about him other than that he had been calling him "names". Mr Robinson did not tell Mr Davidson of the alleged incident involving Mr Moule and the Regulator found that unusual because Mr Robinson said that after the incident he had reached the point where he was going to see a Psychiatrist.
- [60]The Regulator adds that the responses given by Mr Davidson and Mr Ellul were reasonable in all of the circumstances particularly when Mr Robinson had only referred to Mr Giddy calling him names. This, when considered with Mr Robinson's desire not to see Mr Giddy lose his job, justified, in its view, the response from Mr Davidson.
Evidence of Mr Enge
- [61]Concerning the evidence of Mr Enge, I have accepted the Regulator's view that his evidence does not in fact relate to any nominated stressors. The evidence given by Mr Enge went primarily to a particular comment he says he had heard about Mr Robinson which he then repeated to Mr Robinson. The words complained of (which were specific) have not formed part of Mr Robinson's stressors.
- [62]I have accepted that it is not open to the Commission to proceed to make findings that are outside of the stated stressors[3].
Medical Evidence
- [63]Mr Robinson's evidence was that after the incident with Mr Murchie, he attended his General Practitioner, Dr Hodgens on 12 October 2011.
- [64]Mr Robinson said he asked Dr Hodgens to obtain his medical records from the Hospital where his neck operation had been performed. At that time Mr Robinson said he was concerned that people were calling him a homosexual and he wished to know if something had happened after his neck operation.
- [65]Mr Robinson's evidence was that Dr Hodgens referred him to the mental health unit at the Mackay Base Hospital and that was where he said he had suffered his first Tourette's attack.
- [66]The Regulator called Dr Susan Hodgens, General Practitioner, to give evidence.
- [67]That evidence was:
- That Dr Hodgens had treated Mr Robinson prior to his visit on 12 October 2011.
- When asked in cross-examination why Mr Robinson had attended Dr Hodgens on that day his response was that he saw Dr Hodgens about his neck
- At the time of the 12 October 2011 visit Mr Robinson presented as "delusional, hearing voices, feels everyone is talking about him, smokes dope. Happened since in [sic] neck surgery" [T4-33].
- That Mr Robinson's visit was primarily centred upon a previous neck operation and "that the problems had happened since then" [T4-34].
- Mr Robinson denied telling Dr Hodgens that he had been hearing voices. Mr Robinson said that Dr Hodgens had assumed that was what he was saying, but when he denied it she had said "yes, you are".
- Mr Robinson elaborated "It was troubling my conscience that I offended the surgeon by - because with the drugs they gave me in Brisbane, I was - I became real obnoxious and I was just worried that I had said some nasty things to the surgeon. I just wanted to ease my conscience that I hadn't - hadn't said anything bad to him."
- The Appellant says that Mr Robinson's reference to his neck surgery was as the result of Mr Murchie's comments at the workplace - "did anything happen after the operation?"
- Dr Hodgens said that she had recalled Mr Robinson telling her that a work‑mate had been telling everyone about his operation.
- [68]Mr Robinson said that shortly after his neck operation in May 2010:
- He had thoughts that he was interrogated by the Police;
- he wanted to know what happened - i.e. did it happen or not;
- he suspected the interrogation related to the murder of a "Ms R A".
- [69]The Regulator submits that Mr Robinson's visit to Dr Hodgens in October 2011 was not due to any work related problems.
- [70]After this consultation, Dr Hodgens referred Mr Robinson to the Emergency Department of the Mackay Base Hospital and she agreed that he had been presenting "unusually" and appeared to have a disorder of the mind [T4-36].
- [71]Dr Hodgens had been treating Mr Robinson for about 13 years and she was asked by Counsel for the Appellant whether Mr Robinson was behaving "completely out of left field" on that day and she agreed [T4-38].
- [72]The local Council had told Mr Robinson, prior to his consulting Dr Hodgens that he had to get rid of his dog. He then said that, prior to attending the Mackay Base Hospital, he repetitively said "fuck, fuck, fuck…" and that he had begun growling like a dog [T2‑27].
- [73]Before going to hospital, Mr Robinson's wife phoned Mr Ellul saying that Mr Robinson was just screaming "fuck" continually. The only other words said by Mr Robinson and heard by Mr Ellul on the phone were "fucking Moulie" and "fucking Giddy" [T3-65].
- [74]The Regulator says that the medical records from the Mackay Base Hospital clearly demonstrate that Mr Robinson's presentation was not work related. The hospital records of 27 October 2011, state that Mr Robinson had an argument with his neighbours either on that day or the day before [see Exhibits 4 & 5].
Dr Riccardo Caniato
- [75]Mr Robinson was seen by Dr Caniato at the request of WorkCover for the purpose of an independent psychiatric assessment and report. This occurred on 11 April 2013 and Dr Caniato's Report was received on 17 April 2013 [Exhibit 10]. Dr Caniato said at that time he had not been provided with any 'collateral' material concerning Mr Robinson (i.e. Hospital notes or records from medical centres). Consequently, when he considered Dr Larder's Report, (where the collateral material had been supplied) he qualified the original opinion that he had given which was that Mr Robinson was psychotic at the time in question [T4-54].
- [76]While Mr Robinson said he had probably told Dr Caniato that he was not taking drugs, he stated that he had smoked marijuana since the age of 18 and throughout 2011 he was smoking a couple of cones once a month [T2-22]. Mr Robinson said he had not told Dr Caniato of his drug taking because Dr Caniato was out to 'get' him [T2-36]. Basically, Mr Robinson thought that Dr Caniato was trying to trick him with his questions. He formed this view because when he had told Dr Caniato about people calling him names, Dr Caniato seemed not to believe him.
- [77]Dr Caniato's initial Report stated, inter alia, that:
"In reviewing the collateral at the moment I can find no evidence to support Mr Robinson's claims that co-workers spoke to him in the alleged way… I can find no obvious plausible relationship between the work related issues as alleged by Mr Robinson as current psychiatric symptoms. I can therefore at the moment not endorse the current work related psychiatric illness. Should however further information or collateral come to light, I would be willing to assess my conclusions."
- [78]Dr Caniato provided a supplementary Report dated 5 May 2013. Dr Caniato was provided, amongst other things, with a comprehensive statement provided by Mr Robinson with regard to his claims [Exhibit 11].
- [79]After considering that material, the Regulator says that Dr Caniato determined that the information provided in the statement indicated that Mr Robinson was:
- "describing hallucinations, ideas of reference and delusions;
- not describing occurrences in the workplace that could reasonably explain his current psychiatric state; and
- the new information indicated a primary psychiatric disorder and the possibility of schizophrenia is also more likely" [Exhibit 11 - pages 5 to 6].
- [80]Dr Caniato, after considering Dr Larder's Report, said ultimately that Mr Robinson was more likely to have a primary psychotic disorder such as schizophrenia rather than a major depressive disorder with psychotic features [T4-58].
- [81]In response to a question from the Deputy President as to whether his opinion would change if the events so alleged by Mr Robinson were found to have occurred at work, Dr Caniato doubted whether a primary psychotic illness could be caused by work stress, but that a primary illness could be aggravated by work stress [T4-74].
- [82]Dr Caniato's comments around this particular point were:
"It would be completely plausible to claim that a primary illness was aggravated by work stress… I think an aggravation could be claimed… Significant workplace bullying, if verified, can bring on a depressive illness."
Dr Caniato also stated:
"Look, unlikely, but it would certainly be a factor. For each item that he states which could be shown it certainly might improve his claim in regards to the WorkCover issue. From the diagnostic issue, I doubt that it could change his diagnosis of a psychotic illness. It - I don't think that that would be the case. It might change in terms of what had occurred at work, but I think the issue that he's a - has a psychotic illness is now reasonably firmly established beyond too much doubt "[T4-71].
Dr Larder
- [83]Dr Larder assessed Mr Robinson on 18 June 2014 and diagnosed him with a severe depressive illness with onset in 2011. Dr Larder had collateral material with him including hospital records and medical centre records.
Difficulties associated with the date of Mr Robinson's decompensation
- [84]Dr Larder, in providing his Report, was unaware that Mr Robinson's nominated date of decompensation was 27 October 2011. Under instructions provided by Mr Robinson's solicitors, he had taken into account workplace events beyond that date and into 2012 when Mr Robinson had suffered a second breakdown.
- [85]Against that background up until 2012, Dr Larder stated:
"A fundamental issue in this case to answer this question accurately is collateral information from witnesses which may exist to corroborate Mr Robinson's account of the verbal abuse [which there is no doubt, in my opinion, he believes occurred]."
- [86]In cross-examination, Dr Larder was asked to assume that the date of Mr Robinson's decompensation was 27 October 2011. Accepting that, Dr Larder believed that his Report of 18 August 2014 contained a suggestion that information regarding events up until October 2011 could be supportive of a view that the issues "were significant in terms of causing or triggering stress that triggered his problems or his psychiatric condition".
- [87]Dr Larder, who had been given time in which to consider his opinion vis a vis the altered dates provided the following opinion as summarized by the Regulator:
- "the information (of the date of decompensation) raises a concern because of his instructions and "the current state of the matter" effectively differ;
- he would need to know which stressors were pre 27 October 2011 and those post 27 October 2011; and
- he reiterated that the letter of instructions contained certain events that postdated 27 October 2011 and they were taken into account for the purposes of providing his report" [T4-9].
- [88]Dr Larder said that Mr Robinson's claim of people calling him names at work was "one of a number of incidents of varying significance in terms of causation of his severe psychiatric problems". However, in response to the following question from the Regulator: "So is it correct, if I understood what you've said, that all the stressors that you've relied upon for the formation of your report dated 18 August 2014 effectively are all significant?" Dr Larder responded "Well, yes. They - they're significant in terms of they're a component of his experiences --- Yes? --- which have accumulated" [T4-9].
- [89]Later in his evidence, Dr Larder said that if the name calling had not occurred as described by Mr Robinson, then it would shed a different light on his Report [T4-43].
- [90]The Regulator stated that Mr Robinson, when advising Dr Larder of his history, had told him that half of the workforce at Jillalan (about 150 people) were involved in the name calling, but in cross-examination, Mr Robinson said that the number could be 20 or 50 as he could not remember specific numbers.
- [91]While Dr Larder said that the stress experienced by Mr Robinson from June 2011 until 27 October 2011 would be causative of his illness, the 'big item' causing Mr Robinson's illness was the name calling from others at work - i.e. "knob jockey" and "cocksucker".
- [92]Primarily, he stated "If it's found to be factual, regarding these types of names that he was called through June, July, August, September up until 28 October 2011 (they were enough) to affect him and to trigger the illness."
Findings on Medical Evidence
- [93]The Regulator says that Mr Robinson's injury does not fall within the ambit of s 32 of the Act.
- [94]The Regulator says that the Appellant's case is founded on the basis of his visit to Dr Hodgens and his later presence at the Mackay Base Hospital and that the trigger for those events was work related. The claimed trigger was Mr Murchie's comments about Mr Robinson's neck and his surgery. The Appellant says there is a direct link between comments being made about Mr Robinson at the workplace and his visit to Dr Hodgens. For reasons outlined in the conclusion to this decision, I have not accepted the Appellant's assertion on this point.
- [95]The Regulator relies upon Dr Caniato's opinion that the Appellant believed that the various events had occurred but that this was because of his underlying condition of delusional/hallucinatory moments and that he suffered from schizophrenia.
- [96]Some of the information as previously stated provided to Dr Larder by Mr Robinson was clearly incorrect in that Mr Robinson's direct evidence in the hearing contradicted history he had provided to Dr Larder.
- [97]I have preferred Dr Caniato's evidence over that of Dr Larder. Dr Larder said that if the name calling had occurred throughout the months of June, July, August, September until October 2011 (as per Mr Robinson's history), then he believed that it would affect Mr Robinson and trigger his illness. For reasons later outlined in this decision, I have not accepted Mr Robinson's claim with regard to name calling at the workplace.
- [98]Having said that, it remains clear that both Doctors concur that if events as described by Mr Robinson had occurred, then, for Dr Caniato, this would not significantly alter his opinion and for Dr Larder it would satisfy a view he had proffered after a reconsideration of events up until the date of decompensation.
Did the events as alleged by Mr Robinson at his work place occur?
- [99]In determining this matter, I have considered the evidence of Mr Robinson and other lay witnesses in conjunction with the available medical evidence within the context of Groos v WorkCover Qld[4].
"Whether a worker sustains an injury within the meaning of section 32(1) is a mixed question of law and fact on which medical evidence is often helpful but necessarily not decisive."
- [100]In forming this view on the medical evidence, I have also taken into account the Appellant's reference to the matter of Cowen v Bunnings Group Ltd wherein the following was stated by Wilson J:
"As Dixon CJ and others explained in Ramsay v Watson, a medical expert may express an opinion as to the nature and cause, or probable cause, of an ailment, but it is for the jury to weigh and determine the probabilities; and, in undertaking that exercise, the Court is not to transfer the task to the experts, but rather, to ask itself: "Are we on the whole of the evidence satisfied on the balance of probabilities of the fact?"[5]
- [101]In this matter, the medical opinion, at least from Dr Larder, has been contingent upon Mr Robinson's history of work-related events being accepted by the Commission as factually correct. Whereas Dr Caniato doubted that his diagnosis of a psychotic illness would change, he states that from a diagnostic perspective, he accepts that "it might change in terms of what had occurred at work, but I think the issue that he's a - has a psychotic illness is now reasonable firmly established beyond too much doubt."
- [102]Considering these medical opinions with the facts of this case, it is found, for the following reasons, that Mr Robinson's history of work related events is not accepted. From the evidence, it appears that Mr Robinson may have been in the vicinity of persons who used language of the general type referred to in this decision. But what is not found, on the evidence, is that any of those words were directed at Mr Robinson.
- [103]I have accepted medical evidence to the extent that Mr Robinson believed that the events he nominated as stressors actually occurred, but the facts of the case do not make that proposition a reality.
Findings on Stressors
Stressor 1
- [104]I have accepted evidence from Mr Robinson and Mr Giddy to the extent that the words 'cocksucker' and 'knob jockey' had been used in the workplace by Mr Giddy. I have not, however, found that those words were directly aimed at Mr Robinson.
- [105]Mr Giddy had used words of that type at work but said that he had mainly used the word 'cocksucker' outside of the workplace with friends but that there was no intent to cause harm. Notwithstanding Mr Giddy's evidence that Mr Ellul had not spoken to him regarding Mr Robinson, I have accepted Mr Giddy's evidence to the effect he ensured that he refrained from using those types of words 'in the presence' of Mr Robinson because of comments made to him by other workers.
- [106]Mr Giddy did admit saying to Mr Robinson, "Whose cock have you been sucking to get the local" but said this type of language in those types of circumstances (i.e. where someone had received some type of benefit in the workplace) was not uncommon. Mr Robinson does not recall that comment being made.
Stressor 2
- [107]The Regulator submits that this stressor is not particularized in any way which would permit a proper examination of it. The 'various' co-workers were not identified in the nominated stressors. In my view, this stressor is unable to be considered due to lack of specificity.
Stressor 3
- [108]I have not accepted that Mr Giddy saw Mr Robinson on any regular basis. I have accepted Mr Giddy's evidence that, after he had been advised by other workers that Mr Robinson was saying he had been calling him names, he made certain that he watched what he said around Mr Robinson.
Stressor 4
- [109]I have not accepted that Mr Giddy said the alleged words to Mr Robinson. As for the nomination by the Appellant of Mr Grendon being present when the alleged words were said, the decision to call Mr Grendon was open to the Appellant and it chose not to follow that course believing that Mr Grendon was clearly in the Regulator's "camp". I have not accepted that proposition.
Stressor 5
- [110]The evidence around this Stressor has been unusual.
- [111]Mr Yard worked as an Area Controller and interaction with train crew (where Mr Robinson worked) was not frequent and while one could see a driver one day it was likely that one would not see that person for another 6 months [T4-3].
- [112]Mr Robinson's evidence was that Mr Yard was in the habit of sending him inappropriate text messages and had done so for around 18 months. These messages were received by Mr Robinson about once a month or once every couple of months. The inappropriate texts contained descriptors of Mr Robinson as being a "homo" and a "poof". Mr Robinson had taken no offence at this because Mr Yard was his friend.
- [113]Mr Robinson said that around September 2011 he had asked Mr Yard to desist from this type of commentary. Mr Robinson said that Mr Yard claimed that he was unaware that other people had been calling Mr Robinson similar names [T2-41]. It appeared unusual that these claims had not been put to Mr Yard while giving evidence by either party. Other than being 'unusual' that matter can be taken no further in terms of Mr Yard as he was not required to respond to those allegations.
- [114]While Mr Yard, who was called to give evidence by the Appellant, had said that he and Mr Robinson "got along pretty good, highly regarded him a good friend", in its submissions, the Appellant said that there had been "no suggestion" that he and Mr Robinson were friends [Appellant's submissions - point 101]. That claim by the Appellant is also unusual as it is directly contrary to the evidence of both witnesses.
- [115]In evidence in chief, Mr Yard claimed that Mr Moule had said the alleged words (i.e. "Can you taste something on Yardy's cock?") on that day and he was "quite sure" that Mr Robinson was in the room at the time. Mr Moule's evidence was that there would have been no reason for Mr Robinson to be in the control room at all. Mr Yard said he had used the words "quite sure" that Mr Robinson was in the room because the door to the control room was open. In cross‑examination, he affirmed that Mr Robinson was definitely in the room. Mr Yard also stated that it was probably three months after that event that he again saw Mr Robinson and noticed that he was 'edgy'.
- [116]The Regulator rightly states that there was added commentary from Mr Robinson to the words used beyond those mentioned in the Stressor. These included Mr Robinson's evidence of asking Mr Moule whether he had been calling him "a fag" and Mr Moule responding with "take it as you like". The Appellant had asked Mr Moule whether he had called Mr Robinson "a Homosexual" and not the descriptor alleged by Mr Robinson ("fag").
- [117]Mr Moule was not named by Mr Robinson as someone who had ever called him names at work save for this allegation and this was despite the evidence of Mr Robinson that "half the workforce" at Jillalan were calling him names (as per his report to Dr Larder). Mr Moule was adamant that he barely saw Mr Robinson, and this infrequency of meetings between various groupings at Jillalan has been accepted on the basis that the workers performed discretely different jobs. I have accepted that Mr Moule had never seen Mr Robinson in the control room and that Mr Robinson would have no reason to be there. I have preferred Mr Moule's evidence over that of Mr Yard and Mr Robinson.
- [118]There has been added commentary to the nominated stressor by Mr Robinson and I am unconvinced that this event actually happened.
Stressor 6
- [119]The finding in Stressor 1 applies to this stressor.
Stressor 7
- [120]There is insufficient evidence and information in this stressor to consider the reference to Mr Robinson's neck operation as something more than it appeared to be. What Mr Robinson read into that commentary as a matter of fact cannot be attributable to Mr Moule.
Stressor 8
- [121]Mr Robinson at no stage advised senior officers of the detail of the complaints he had against Mr Moule and Mr Giddy. On his own evidence he agreed that he had wanted both to stop calling him names, however he never mentioned detail. I accept that Mr Ellul responded according to the information Mr Robinson gave him - i.e. he spoke to the alleged offenders and requested that they desist from calling Mr Robinson names. Also significantly, Mr Robinson had stressed that he did not want to get anyone into trouble.
- [122]After his conversation with Mr Ellul, Mr Robinson saw Mr Davidson and told him that he had been pacing backwards and forwards and saying "huh" all the time and was going to see a Psychiatrist because Mr Giddy had been calling him names. Mr Robinson said he did not believe that he had told Mr Davidson about Mr Moule. He said that he thought Mr Davidson might talk to Mr Giddy but he didn't want Mr Giddy to lose his job. He said that he had told Mr Davidson "what was happening" but no further evidence was given on that point. In my view, if the event with Mr Moule had actually happened it seemed odd that Mr Robinson did not mention that to Mr Davidson.
- [123]I have found that Mr Davidson's response to Mr Robinson (i.e. telling him to stay away from Mr Giddy) was not unreasonable in that basically what information had been provided to Mr Davidson had been so limited (that Mr Giddy had been calling him names) that there was little scope to proffer any other view, other than to stay away from Mr Giddy.
- [124]I have drawn no adverse inference against the Regulator for not calling Mr Davidson to give evidence. Mr Robinson outlined the commentary made by Mr Davidson and that commentary, in my view, constituted a response and advice in the circumstances of a somewhat vague complaint made by Mr Robinson.
- [125]The management action taken was reasonable and taken in a reasonable manner by the employer [s 32(5)(a)]. The onus lies with the Appellant to prove that Mr Davidson's actions were unreasonable actions and the Appellant has failed to discharge that onus[6].
Conclusion
- [126]It is accepted that Mr Robinson suffered a personal injury that is a psychological/ psychiatric disorder.
- [127]Mr Robinson's injury does not fall within the ambit of s 32 of the Act. It is precluded by the operation of s 32(1) of the Act.
- [128]Having made these findings with regard to the nominated stressors, I have found that the events as described by Mr Robinson did not occur. I accept that Dr Caniato's opinion would not significantly alter even if the events described by Mr Robinson had occurred. Dr Larder claimed that "if it's found to be factual, regarding these types of names that he was called through June, July, August, September up until 28 October 2011 (they were enough) to affect him and to trigger the illness". As it has been found that these events had not occurred, Dr Larder's opinion as it related to a trigger for Mr Robinson's injury, is academic in the circumstances.
- [129]The consultations with Dr Hodgens and Mr Robinson's subsequent attendance at the Mackay Base Hospital was said by the Appellant to have related to work. That submission is not accepted. When Mr Robinson's reason for attending Dr Hodgens, coupled with her view of Mr Robinson at the time, are considered, they are consistent with the diagnostic findings of Dr Caniato as it relates to Mr Robinson's psychiatric condition.
- [130]Dr Caniato stated that while Mr Robinson believed that the events described in the Stressors had occurred, he was in fact experiencing delusional/hallucinatory moments while suffering from schizophrenia. That opinion in my view is borne out by the findings of fact in this matter.
- [131]The Appellant has been unable to establish that Mr Robinson's injury is compensable on the basis that it arose out of or in the course of employment and that his employment was a significant contributing factor to his injury[7].
- [132]The application is dismissed and the decision of the Regulator is confirmed.
- [133]The Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
Footnotes
[1] Simon Blackwood (Workers' Compensation Regulator) v Mary Adams [2015] ICQ 001.
[2] Jones v Dunkel [1959] HCA 8
[3] Martin P in Simon Blackwood (Workers' Compensation Regulator) v Mary Adams [2015] ICQ 001.
[4] Groos v WorkCover Qld [2000] 165 QGIG 106).
[5] Cowen v Bunnings Group Ltd [2014] QSC 301
[6] Prizeman v Q‑Comp [2005] QIC 53 per Hall P.
[7] Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028.