Workers' Compensation Regulator v Guymer
[2017] QIRC 80
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- Unreported Judgment
- Workers' Compensation Regulator v Guymer[2017] QIRC 80
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Workers' Compensation Regulator v Guymer[2017] QIRC 80
Workers' Compensation Regulator v Guymer[2017] QIRC 80
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Workers' Compensation Regulator v Guymer [2017] QIRC 080 |
PARTIES: | Guymer, Steven (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2016/109 |
PROCEEDING: | Application to Dismiss |
DELIVERED ON: | 30 August 2017 |
HEARING DATES: | 20 March 2017 (Mention) 27, 28 and 29 March 2017 (Hearing) 4 May 2017 (Further Mention) 19, 20 and 21 July 2017 (Hearing) 24 July 2017 (Application to Dismiss) 24 July 2017 (Regulator's Submissions) 8 August 2017 (Appellant's Submissions) 17 August 2017 (Regulator's Reply Submissions) |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
ORDERS |
|
CATCHWORDS: | WORKERS' COMPENSATION APPLICATION TO DISMISS - Application made under Workers' Compensation and Rehabilitation Act 2003 and Industrial Relations Act 2016 by Workers' Compensation Regulator to dismiss substantive Appeal - No medical evidence identifying a fresh injury or an aggravation of an existing psychiatric condition - ongoing medical condition of a psychiatric injury - injury present since 2012 - determination that there is no compensable injury and consequently, the substantive Application is dismissed. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Industrial Relations Act 2016 |
APPEARANCES: | Mr M. Guymer (Snr), on behalf of the Appellant Mr S. Guymer (Jnr). Mr P.B. O'Neill of Counsel, directly instructed by Ms K. Bednarek of the Workers' Compensation Regulator. [For the discrete purposes of this application to dismiss, Mr Steven Guymer will be identified as the Appellant and the Respondent as the Regulator. |
Decision
- [1]The Appellant lodged an Application for Compensation dated 19 June 2015, for an alleged psychiatric injury said to have occurred over a period of time with the date of the injury being April 2015. [WC/2016/109 - Exhibit 1]
- [2]The injury was that of an "aggravation of an adjustment disorder, anxiety and depression".
- [3]At the conclusion of the Appellant's case before the Commission in the substantive claim, the Regulator filed an Application to dismiss the Appeal.
OVERVIEW OF APPELLANT'S CLAIMS
- [4]For the purposes of clarifying the Appellant's claim, it is necessary to refer to the Appellant's opening submission in the substantive Appeal:
"This is the fifth application for a psychiatric injury dated 13 April 2015 and is due to reprisal action by management over a period of time to April 2015. Gold Coast City Council rejected the application, and an appeal to Q-COMP made a decision dated 27April 2016 to confirm the decision of the Gold Coast City Council, which was rejected on the ground of reasonable management action taken in a reasonable way. This is the appeal before you today. I, Mark Guymer, was working that same section as Steven. I'd lodge a public interest disclosure of the Gold Coast City Council about City Cleaning Management in January 2013. This states, in part:
I have therefore decided to advise you of the following and would request that you ensure that there is no reprisal action taken against myself or my son, Steven Guymer, who works in the same section as myself, as he has been diagnosed with a work-related stress disorder, workers' compensation pending.
I believe that both myself and my father have been subjected to reprisal action by Gold Coast City Council management, and we will endeavour to show you the appropriate documentation and evidence which shows breaches of many council policies and procedures. This has caused Steven's psychiatric condition. I believe that he started coping with the death threat from the co-worker; however, this claim is due to harassment from City Cleaning Management and may be diagnosed as adjustment disorder, but it due to a new cause - reprisal action by management." [T2-6, ln 45 to T2-7, ln 19]
APPELLANT'S PRIOR WORKERS' COMPENSATION CLAIMS
- Claim 1 - 2011 - psychiatric injury - "adjustment disorder with mixed anxiety and depressed mood" - due to a death threat from a co-worker - accepted*.
- Claim 2 - 2012 - psychiatric injury - "stress disorder" - rejected.
- Claim 3 - 2013 - psychiatric injury - "stress disorder" - allowed by consent.
- Claim 4 - 2014 - psychiatric injury - submitted after he believed that management were harassing and victimising him- rejected.
- Claim 5 - (to which this matter relates) - dated 19 June 2015 - psychiatric injury - for period of time injury - "aggravation of adjustment disorder due to reprisal action by management over a period of time to April 2015".
[*NOTE: The Medical Assessment Tribunal in June 2014, in respect of the first claim, determined that Mr Steven Guymer met the diagnosis of "adjustment disorder with mixed anxiety and depressed mood" and subsequently, the condition was regarded as "stable and stationary" with a permanent impairment of 2.5 per cent]
- [5]The Regulator's Application to Dismiss is made pursuant to s 558 of the Workers' Compensation and Rehabilitation Act 2003. Further, and in the alternative, s 541(b) of the Industrial Relations Act 2016, permits for the dismissal of a matter as further proceedings by the Commission are not necessary or desirable in the public interest.
- [6]Primarily the Regulator's submission is that the Appellant has not sustained a compensable injury because what he suffers from is an ongoing psychiatric condition that arises either from his first claim, or some combination of the first to the fourth claim for psychiatric injury. Consequently, the Regulator maintains that the Commission should make a preliminary finding on the issue of injury and confirm that the Appellant has not sustained a new psychiatric injury or an aggravation of the pre-existing psychiatric injury.
MEDICAL EVIDENCE
Dr Bothwell - General Practitioner
- [7]Dr Bothwell is a General Practitioner who commenced treatment of the Appellant on 6 September 2013. At that time, her records show that the Appellant had been suffering from a continuing psychiatric injury (an Adjustment Disorder) which had sustained for some period of time.
- [8]Dr Bothwell, in Cross-Examination, confirmed that the Appellant's Adjustment Disorder had continued for some time prior to her initial consultation in 2013 and she had merely confirmed the pre-existing diagnosis and continued treating him for that diagnosis until 2015.
- [9]From that time, Dr Bothwell had continued the same diagnosis and recorded the injury as having been caused by "bullying in the workplace, victimisation, and managerial mismanagement".
- [10]Throughout that period of time, Dr Bothwell said that there had not been a huge improvement in his overall condition. Dr Bothwell had also back-dated a significant number of the Appellant's medical certificates over a period of time.
- [11]The Regulator submits that the only evidence provided where a reference to an aggravation of the Appellant's psychiatric condition is made, occurred on 15 May 2015 where Mr Mark Guymer (Snr) visited Dr Bothwell in the absence of the Appellant. A medical certificate eventually issued altering the Appellant's diagnosis to that of "an aggravation" of a pre-existing psychiatric condition. This Certificate was dated 15 May 2015 and referred back to 30April 2015, where the first mention of an "aggravation" was raised. The Regulator submits:
- "It is inconsistent with the earlier medical certificates of Dr Bothwell that attributed the psychiatric condition occurring in January to 30 April 2015 to events from 2013;
- Dr Bothwell has issued two conflicting medical certificates, the first actually dated 30 April 2015 certifies that on that date the Appellant was suffering from the pre-existing psychiatric condition attributable to the 2013 events. Two weeks later Dr Bothwell issues a further workers' compensation medical certificate that certifies on that date that the Appellant was suffering from an aggravation of the psychiatric disorder with the stated date of injury being April 2015.
- The consultation note of 15 May 2015 (page 6 of Exhibit 24) apparently indicates that the consultation was with Mark Guymer and not with the Appellant at all. There is no mention of a medical certificate in fact issuing that day". [Respondent's submissions, point 29]
- [12]Dr Bothwell had back-dated a number of the Appellant's workers' compensation certificates over a period of time while having not seen the Appellant during those periods covered by the Certificates. At the expiration of one set of absences, the Appellant would see Dr Bothwell and a further back-dated process would occur.
- [13]The Regulator rightly, in my view, submits that the medical certificate of 15 May 2015 is inherently unreliable. As well, the Regulator says that considering the inconsistency with earlier medical opinions expressed by Dr Bothwell over an extensive period of time, that medical certificate "appears to be an artifice (like the earlier back-dated medical certificates) created solely to support an illegitimate further claim for compensation".
Dr Lotz and Dr Chalk - Psychiatrists
Dr Lotz
- [14]Dr Lotz's Reports were dated 9 August 2012 [Exhibit 29], 16 May 2014 [Exhibit 30], 27 April 2015 [Exhibit 31] and 9 December 2016 [Exhibit 28]. (Dr Lotz's consultation notes are Exhibit 32.)
- [15]Taken overall, Dr Lotz confirms a consistent diagnosis of one ongoing psychiatric disorder continuing from his initial consultation with the Appellant on 1 August 2012 through to 15 November 2016.
- [16]The Appellant aligned those reports and notes with the preceding Workers' Compensation claims which had been made stating that the diagnosis at the time only related to the particular claim being made at that point in time and that is all one should be considering in the current claim before the Commission. However, that misconstrues the assertion being made by the Regulator that, over an extensive period of time and during the course of various Workers Compensation claims made by the Appellant, the Appellant's diagnosis had not changed.
- [17]There has been no evidence from Dr Lotz that the Appellant had ever sustained an aggravation of his psychiatric condition arising from events from January to April 2015. Dr Lotz also notes that his view conforms with that of Dr Bothwell over that period of time.
- [18]In Dr Lotz's Medical Report of 27 April 2015, it is significant that he states:
"The Appellant did not have insight into the consequences of his behaviour, and continued to not take any responsibility for his actions.
…
It appears Mr Guymer is over-sensitive to what he considers to be any form of harassment, the minor issues he has stated such as colour of shoes, overtime, errors with pay may have well been errors that occur in normal circumstances, however Mr Guymer has personalised this as part of a continuing victimisation and harassment from the Gold Coast City Council". [Exhibit 31]
- [19]Dr Lotz thought it unlikely that there had been harassment, of the type claimed by the Appellant, and it was more likely that the Appellant had misinterpreted minor issues as being "personal harassment." [Regulator's submissions, point 36]
- [20]The Regulator provided a further summary of Dr Lotz's evidence showed that:
- "For the entire time he has been treating the Appellant that he has been suffering from the adjustment disorder and symptoms of that adjustment disorder and that included features of both anxiety and depression;
- That most of the time the Appellant attended his consultations with his father;
- That he stood by and confirmed the opinions expressed in Exhibit 31;
- That there was a gap in his treatment of the Appellant from 10 August 2015 to November 2016;
- That he agreed with the opinion of Dr Chalk expressed in his report of 24 August 2015 (Exhibit 41) that the Appellant's adjustment disorder was a continuation of the same condition that he had been suffering from for some time. Dr Lotz indicated that the condition present in August 2015 would be related to the initial death threats and assault;
- That he agreed with the opinion of Dr Chalk expressed in Exhibit 44, his report of 13 March 2017, in which Dr Chalk noted at page 2 that the injury was the subject of psychiatric claims 1 to 4 had not resolved at any stage; and
- That he also agreed with the opinion of Dr Chalk that as of 30 April 2015 the Appellant's psychological condition, namely a chronic adjustment disorder with anxious and depressed mood of mild severity, was a continuation of the psychological condition assessed by the permanent impairment of the Medical Assessment Tribunal of June 2014 that was the subject of the first claim". [Regulator's submissions, point 37]
- [21]I have accepted those summaries of Dr Lotz's evidence in that there has been a consistent diagnosis of one continuing psychiatric disorder from his initial consultation with the Appellant from August 2012 through to his further supplementary report in December 2016. [Exhibit 28]
- [22]Dr Lotz's evidence is unambiguous and I have accepted his opinion.
Dr Chalk
- [23]The Appellant has submitted that Dr Chalk has reported on a number of matters which were not relevant to the particular Appeal before the Commission i.e. prior Workers' Compensation claims, amongst other things. The Appellant submits that any references to matters outside of the actual claim period should be disregarded by the Commission.
- [24]Dr Chalk had been provided with all of the relevant documentation pertaining to the Appellant including medical reports, medical certificates etc from around 2013. This is not unusual and its relevance is that it provides a background against which the doctor can gain a more complete history of the Appellant's medical circumstances, coupled, of course, with the Appellant's input into his/her medical history and explanations relevant to various events.
- [25]Dr Chalk produced a Report concerning the Appellant on 24 August 2015, after conducting a clinical assessment with him on 20 August 2015. [Exhibit 41]
- [26]Subsequent to that Report, Dr Chalk added further commentary relative to Exhibit 41 on 8 September 2015. [Exhibit 42]
- [27]On 13 March 2017, Dr Chalk provided a further supplementary Report concerning the Appellant in response to various questions posed by the Regulator. [Exhibit 44]
- [28]For the last two supplementary Reports, Dr Chalk did not see the Appellant.
- [29]Dr Chalk's assessment of the Appellant includes the following commentary:
"I think the events of this claim need to be looked at in the light of the problems that Mr Gyumer has had over time. Rightly or wrongly he clearly believes that the Council did not act in good faith in regard to his original claim, and in my view the difficulties that he has had since then need to be seen in the context of that claim. In other words, I do not think at all that these events can be disentangled, and there is in my view no evidence that that is a fresh injury but rather in my view a continuation of the prior difficulties.
…
Mr Guymer essentially is of the view that all of the factors that he elaborates have contributed towards the development of his adjustment disorder….. Essentially I am of the view that this man has over a period of time come to regard any actions directed towards him with a degree of anathema." [Exhibit 41]
- [30]The fact that Dr Chalk has concluded that the events affecting the Appellant over time were unable to be disentangled is an opinion which is accepted by the Commission.
- [31]I have accepted Dr Chalk's evidence. His view does not in any material way differ from that of Dr Lotz and the long-term view held by Dr Bothwell (with the exception of her medical certificate in May 2015).
CONCLUSION
- [32]I have accepted the submissions of the Regulator to the effect that the continuation of the substantive appeal (Matter No. WC/2016/109) should be dismissed.
- [33]It is clear that there is no relevant medical evidence to support the claim being made by the Appellant that he has suffered an aggravation of a pre-existing psychiatric injury or that he has incurred a fresh injury.
- [34]Dr Lotz's view was that he had been diagnosing the Appellant with an Adjustment Disorder since 2012 and by 2016, he said that condition was the same as that he had diagnosed in 2012 and that there had been only one psychiatric condition over that period. That view is accepted and confirmed by both medical specialists and was the long term view of Dr Bothwell.
- [35]Consequently, there is no compensable injury which has been incurred by the Appellant pursuant to s 32 of the Workers' Compensation Rehabilitation Act 2003.
- [36]The Application is granted. The Appellant's Appeal in matter WC/2016/109 is dismissed accordingly.
- [37]If an Application for Costs is made by the Regulator both in respect of this Application and the substantive Appeal, that Application must be made within 14 days of the release of this decision.
- [38]Order accordingly.