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Nutley v Workers' Compensation Regulator[2017] QIRC 91

Nutley v Workers' Compensation Regulator[2017] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Nutley v Workers' Compensation Regulator [2017] QIRC 091

PARTIES: 

Nutley, David Jay

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2015/260

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

16 October 2017

HEARING DATES:

23, 24, 25 January 2017 (Hearing)

4 April 2017 (Hearing)

25 May 2017 (Hearing)

9 June 2017 (Written Submissions)

13 June 2017 (Closing submissions)

HEARD AT:

Brisbane

MEMBER:

Deputy President Swan

ORDERS

  1.  The Appeal is dismissed.
  1.  The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Workers' Compensation Regulator – Appellant incurred a psychiatric injury – Medical evidence shows a melding together of two diagnoses; Post Traumatic Stress Disorder and Adjustment Disorder with Anxiety and Depression – Appellant's complaint made over a two year and nine month period not supported by the evidence – Appellant's history given to medical specialists is not supported by the evidence – Proviso placed by medical specialist dependent upon Appellant's version of events being found to be accurate – Complaints of unreasonable management action not substantiated – Injury of Appellant found not to be the major significant contributing factor – Appeal dismissed.

CASES:

Workers' Compensation and Rehabilitation Act 2003

Groos v WorkCover Queensland 165 QGIG 106

Yousif v Workers' Compensation Regulator [2017] ICQ 004

WorkCover Queensland v Kehl 170 QGIG 93

APPEARANCES:

Mr R. Myers of Counsel, instructed by Mr D. McGrath of Hall Payne Lawyers for the Appellant.

Mr J. Merrell of Counsel, directly instructed by Ms M. Mees of the Workers' Compensation Regulator.

Decision

  1. [1]
    This Appeal is made by Mr David Jay Nutley (the Appellant) against the Decision of (as it then was) Simon Blackwood (Workers' Compensation Regulator, the Regulator) dated 15 September 2015, confirming the decision of WorkCover Queensland to reject the Appellant's Application for Compensation.

The Nature of the Claim

  1. [2]
    The Appellant claims to have sustained an incapacitating psychiatric injury arising from bullying and harassment in the course of his employment with Middlemount Coal Pty Ltd (the Mine) over a period of time from 9 November 2011 to 1 August 2014. 
  1. [3]
    The Appellant's injury was diagnosed by Dr Hugh Levien (Psychiatrist) in his Report of 13 February 2015, as an "adjustment disorder with anxiety and depression" [Exhibit 20].   In reliance on that Report, the Appellant claims that his employment was the major significant contributing factor to the onset of his claimed adjustment disorder.
  1. [4]
    In particular, the alleged conduct of Mr Gordon Large and other co-workers towards him and lack of management action over an extended period of time at the Mine, were significant factors to the onset of his condition. 
  1. [5]
    In the Appellant's Statement of Facts and Contentions, it states that to the extent that his injury arose out of Management's failure to appropriately respond to the Appellant's concerns regarding Mr Large and his co‑workers' conduct, then the management action was not reasonable and not taken in a reasonable way.  Expanded upon, the Appellant said that this was not a case of management action causing the Appellant stress, but rather the "inactivity of management" which also fell under the banner of "management action". 
  1. [6]
    In the Appellant's final submissions it stated:

 "There is no suggestion that the consequences of any management action caused or contributed to the Appellant's injury in any way." [Appellant's submissions, point 82]

  1. [7]
    From the Regulator's perspective, its submission is that the medical evidence was to the effect that the Appellant had not recovered from his Post Traumatic Stress Disorder (PTSD) from an earlier sexual assault (non-work-related) and this was the major cause of his injury. 
  1. [8]
    In the alternative, the Regulator rejects the Appellant's claim that the lack of reasonable management action concerning his complaints was causative of his injury.  The Regulator stated that reasonable management action had been taken in a reasonable way.

 NATURE OF APPEAL

  1. [9]
    This Appeal is made pursuant to s 550(4) of the Workers' Compensation Act 2003 (the Act) and conducted by way of hearing de novo.  The onus of proof rests with the Appellant to establish that, on the balance of probabilities, his psychological condition falls within the definition of s 32 of the Act and is not excluded by the provisions of s 32(5).

WITNESSES

  1. [10]
    Witnesses for the Appellant were:
  • Mr David Jay Nutley, the Appellant;
  • Ms Michelle Neagle, Operator at Middlemount;
  • Mr Jeremy Wharerau, Supervisor at Middlemount;
  • Mr Bradley Andrew Willcockson, Operator at Middlemount;
  • Dr Patrick Wong, Psychiatrist; and
  • Dr Hugh Levien, Psychiatrist.
  1. [11]
    Witnesses for the Regulator were:
  • Ms Kathryn Elizabeth Gayler, HR Advisor Middlemount;
  • Ms Lauren Marie Stewart, Psychologist;
  • Mr Darren Leigh Cuthbertson, Site Senior Executive, Middlemount;
  • Mr Darrin Brian Milner, Mine Manager, Middlemount;
  • Mr David Rangi Wairau, Senior Production Supervisor, Middlemount; and
  • Mr Gordon James Large, Operator at Middlemount Coal Pty Ltd.

BACKGROUND TO THE CLAIM

  1. [12]
    The Appellant commenced work at the Mine on 9 November 2011.  He was engaged as a Pit Controller.  The duties involved data entry and calculating production and overburden figures.  The Appellant said he was competent at those duties and he enjoyed his job until he was appointed to the "B Crew".  He stayed in the B Crew until February 2014 and after that commenced driving trucks for the Mine.
  1. [13]
    The Appellant's supervisor was Mr Dave Wairau and Mr Large was a co-worker in the B Crew. The Appellant worked at the Mine until about 1 August 2014 and had been on sick leave, returning to the Mine only for a meeting with Management on 5 August 2014.  After that date, the Appellant did not return to work.

PRELIMINARY ISSUES

 The Statement of Stressors

  1. [14]
    In his Statement of Facts and Contentions, the Appellant has outlined the factors he says are relevant to the causation of his injury.  There are a significant number of factors to be considered and as some have overlapped, they have been joined.  These factors are:

  (A) Factors associated with Appellant's position as Pit Controller;

 (B) Working Relationship with Mr Large;

 (C) Working with Co-workers; and

 (D) Complaints to Management.

(A)  Factors associated with Appellant's position as Pit Controller

  1. [15]
    The Appellant alleges that he was not appropriately qualified or trained to perform the role of Pit Controller.  The placement of him in this role created acrimony between him and more experienced miners which led to interactions between him and his co-workers being difficult.  The Appellant claims to have suffered stress in this position.
  1. [16]
    When in the B Crew, the Appellant said that further additional duties were placed upon him where he was required to arrange crib breaks; direct operators in relation to those breaks and generally to control the operation of production work in circumstances where he was seen to have little authority, qualifications and experience in the type of mining work involved.  He said that the work became more supervisory in nature.  This type of work gave rise to stress and contributed to his ultimate decompensation.
  1. [17]
    The Appellant says that within a couple of weeks in the B Crew his supervisor, Mr Wairau behaved aggressively towards him by throwing a two-way radio past his head. 
  1. [18]
    Mr Bradley Willcockson, a co-worker at the Mine and called by the Appellant to give evidence, stated:

 "He [the Appellant] was - in my opinion, a good Pit Controller.  I always found his direction clear and concise, He's - as we were first starting out, it's quite a complex … role.

  …

 So I thought he did a good job.  Towards … as it went on, I just saw a man who was worn down, to be honest.  He was very tired, physically tired, interacting less and less with other crew members, just keeping to himself, trying - like, withdrawing… "  [T2-27]

  1. [19]
    Mr Willcockson said that Mr Wairau had often told the Appellant that he should seek another job and that he wasn't cut out to perform the work to which he was allocated.  Mr Willcockson believed that it would have been very difficult for the Appellant to voice his concerns to Mr Wairau.
  1. [20]
    Mr Wairau stated in Examination In-Chief:

 "I knew he struggled at times in the role, but, I mean, he was employed specifically for that role.  Not by me; by somebody else.  And they brought him in from - I think the guy who employed him, whose idea was to get somebody with no knowledge of mining, so that they could, you know, be impartial to what was going on out in the field and that, I guess, but it did make things more difficult for the - you know, for Dave because he didn't have that experience in mining, but - but yeah, look, he used to struggle from time to time [indistinct] and that's when, you know- it's a high pressure role".  [T5-11]

  1. [21]
    Notwithstanding that, Mr Wairau believed that the Appellant possessed some good computer skills which were relevant for recording and data collection.  Mr Wairau denied making the Appellant undertake Leading Hand duties as he already had a Leading Hand.  Mr Wairau, when describing the position undertaken by the Appellant, said that the Appellant had never been given a role description attributable to his job; that it was an evolving role that just "got bigger and bigger" and that the Appellant had to learn the job on the run. [T5-16]
  1. [22]
    Mr Wairau said that Mr Large had resented having to take directions from the Appellant.
  1. [23]
    Mr Wairau denied that he had made threats and ridiculed the Appellant concerning his competence.   He also denied throwing a two-way radio at the Appellant.
  1. [24]
    The Appellant claimed that he had not been able to take regular crib and smoko breaks and Mr Wairau's response was that it was up to the Appellant to find his own "quiet time".
  1. [25]
    An issue arose between the Appellant and Mr Wairau regarding an end-of-shift report which had not been finalised by the Appellant in a timely manner.  Mr Wairau agreed that he had been frustrated at that time and that he had raised his voice and possibly swore at the Appellant.
  1. [26]
    It is accepted that the Appellant was employed in a position where he had no prior experience in mining.  That he could competently perform data entry and calculating production and overburden figures, is not in contention.
  1. [27]
    Mr Wairau believed that by employing the Appellant i.e. someone without mining experience, made the position more difficult for that person.  While I accept the Appellant's concerns in this regard, I have not noted any complaints by the Appellant to Management concerning this matter.  It was Mr Wairau, having considered the Appellant's concerns, who ultimately placed the Appellant in the position of truck driver in February 2014.
  1. [28]
    I have accepted that the Appellant's work was demanding and evolving over time.  That, in itself, is not unusual.  While witnesses called by the Appellant attested to him performing well in that job, I accept that the nature of this expanded position caused the Appellant a degree of stress on occasion.

(B)  Working Relationship with Mr Large

General Particulars of this Claim

  1. [29]
    Mr Large's job involved operating dump trucks, water carts and the loader.  The Appellant asserts that from around September 2012 until 1 August 2014, his co-worker, Mr Large, used a two-way radio to harass and embarrass the Appellant by calling him a "fucking idiot" and criticising him for having "no respect for his elders", which could be heard by other co-workers. 
  1. [30]
    Mr Large told the Appellant he would "get you [the Appellant] back at camp".  It is alleged that Mr Large threatened the Appellant with physical violence. 
  1. [31]
    On another occasion, Mr Large had driven his truck in such a manner as to cause the Appellant to fear for his safety.
  1. [32]
    The Appellant felt apprehensive when in the vicinity of Mr Large and his friends when they were drinking.
  1. [33]
    In February 2014, when asking Mr Large when he was going to return his truck following the crib break, Mr Large responded "Yeah, when I've had crib you little smart ass cunt".
  1. [34]
    On 1 August 2014, Mr Large said to the Appellant over the two-way radio system, "You are a fucking idiot and if you don't fucking know I'm not going to tell you".  The Appellant's claim was that the radio abuse

Evidence concerning this Claim

  1. [35]
    The Appellant claimed that the remarks (further outlined at paragraph [61] of this Decision), had a great effect on his self-esteem and Mr Large was seen to be the "ringleader".
  1. [36]
    After some 15 months, the Appellant took sick leave for about a month.  When he returned to work he was assigned to truck driving duties and occasionally he filled in performing Pit Control work.  When the Pit Control work ceased, the difficulties he had associated with Mr Large and Mr Wairau continued, accompanied by "bickering and name calling".
  1. [37]
    The Appellant said that there would be derogatory comments made about him over the two-way radio system and nearly every second day, he would be taunted by some form of harassment.
  1. [38]
    If he had made an error, Mr Large would be the first person to say something like "you fucking idiot".  This occurred on a regular basis. 
  1. [39]
    The Appellant said that for a period of two years and nine months in the Mine, he had been exposed to taunts, verbal abuse and ridicule, and by February 2014, Mr Large's verbal threats commenced.
  1. [40]
    The final altercation he had with Mr Large occurred on 1 August 2014.  On that day, the Appellant said that he had been performing his normal duties but noticed that the two-way radio had not been functioning properly.  He was only receiving half messages.  He said at that time Mr Large started saying things over the two-way radio like "You're a - you're an effing idiot, Nutley, and absolutely useless".  The Appellant tried to ignore Mr Large's comments and he continued doing his job. 
  1. [41]
    When the Appellant was in the crib room, Mr Large came towards him "calling me profanities, really angry, spitting venom - venom, you know, and abusive in his body language and his tone and I just answered him calmly and collectedly.  The Appellant said "Gordon, is there something that I've done wrong?  Can we please speak about it".  The Appellant said Mr Large responded, "No.  If you don't know what you've - if you don't know what you did, then I'm not going to tell you.  I deal with it in my way". [T1-39]
  1. [42]
    Ms Michelle Neagle, was a co-worker of the Appellant and her evidence corroborated that of the Appellant concerning this incident on 1 August 2014.  Inter Alia, her statement was as follows:

"I was operating on Ex 35 Circuit when I heard Gordon Large Say over the two‑way on the Exploration Channel, 'You're a bloody dickhead Nutley'.

There was no reply.

As at the time people were trying to contact Dave Nutley over the two-way but his two-way was playing up and he could not hear our messages and we could not hear his replies.

Gordon Large said, 'He's too good to answer the two-way'.

Later, as we were all getting in the LV [Light Vehicle] to head for crib, Gordon Large got into the backseat of the LV and said in a very loud and angry voice, 'You're a fucking smart arse Nutley! You're a fucking little smart arse and it's not over! Oh no, it's not over!'

Nutley said calmly, 'I really have no idea what you're talking about'.

Gordon said, 'Well if you don't fucking know, then I'm not going to tell you!'

Nutley did not respond.  Steve and I did not say anything." [Exhibit 1]

  1. [43]
    After this the Appellant spoke to Mr Wairau about the incident and his response was "Well, looks like it's time for you to change crews". 
  1. [44]
    The Appellant said he did not want to talk about the matter anymore with Mr Wairau until he had a Union representative present.  The Appellant said that was the last time he was on the work site.
  1. [45]
    Mr Jeremy Wharerau, was a Mine operator from around December 2011 to February 2014 and was called to give evidence by the Appellant. 
  1. [46]
    In his evidence, Mr Wharerau stated that:

 "Mr Large wouldn't take orders from David [the Appellant], and he was our Mine controller.  And he - we used him to allocate people to machines and work areas and Mr Large would sort of muck around and then not do what he was asked."  [T1-43]

  1. [47]
    Mr Wharerau said he observed the Appellant over time becoming very anxious and added:

 "Generally, he's a happy-go-lucky sort of a guy, and then he started getting real nervous and wouldn't talk to everyone - anyone.  And he'd be outside every five, 10 minutes having a cigarette, which was very unlike him."  [T1-43]

  1. [48]
    Mr Wharerau said that Mr Large had told him that the Appellant should have an IT job and added that Mr Large held no respect for the Appellant and anything said by him.  Mr Wharerau had observed the Appellant crying at work and when he enquired as to what was wrong he said the Appellant said that it related to the harassment he was receiving from Mr Large.  [T1-45]
  1. [49]
    Mr Wharerau advised that as a consequence of Mr Large's behaviour towards the Appellant, he held a meeting with the Appellant, Mr Large and Mr Wairau.
  1. [50]
    At that meeting, Mr Large apologised for his behavior towards Mr Nutley explaining that matters outside of the workplace had been affecting him.  Mr Large's evidence was that, after that meeting, he had apologised to the Appellant even though he believed he had done nothing wrong.
  1. [51]
    Mr Wharerau said Mr Large, after that meeting, refrained from his prior behaviour towards Mr Nutley for about one month only.
  1. [52]
    Mr Willcockson's evidence was similar to that given by Mr Wharerau in that he noticed the working relationship between Mr Large and the Appellant had become very heated and strained at times.  He believed that towards the end of the Appellant's first year of work he had appeared to be anxious and withdrawn and at times shaking when he spoke to Mr Large.  He said that Mr Larges' commentary toward the Appellant could at time as "aggressive, angry banter".
  1. [53]
    Mr Large rejected all claims made by the Appellant in terms of his alleged behavior and commentary towards him.  Mr Large accepted that he had received a written warning from Management as a consequence of an allegation made against him by the Appellant.  The allegation related to Mr Large's breach of a company policy relating to the parking of a truck on the Mine site.  Mr Large also received a written warning for his reference to the Appellant as a "dickhead" over the two-way radio and was issued with a written warning and then removed from working in the B Crew.
  1. [54]
    Mr Large agreed that there had been ongoing conflict between himself and the Appellant.  However, he denied all claims made by the Appellant against him and there was nothing elicited from him in evidence that bore any resemblance to that conflict with the Appellant, save for the Appellant's own evidence.  The exceptions were the one occasion upon which, wrongly in his view, he apologised to the Appellant and when Management had issued him a written warning.
  1. [55]
    The Appellant says that he had been frequently abused by Mr Large over the two-way radio system.  The only recording and evidence of this is in August 2014.  On that occasion, a co-worker, Ms Neagle gave corroborating evidence concerning this event.  I have not accepted the Appellant's claim that this type of incident occurred frequently over the two-way radio.
  1. [56]
    In considering these allegations, while there is evidence which I accept that Mr Large behaved inappropriately towards the Appellant on occasions, I have not accepted that this behavior continued "nearly every second day".
  1. [57]
    The difficulty I have with the Appellant's evidence concerning Mr Large is his claim that he had been treated badly by Mr Large for two years and nine months.  There is an absence of complaints from the Appellant to Management about Mr Large (at least until February 2014) and the absence of any reference by the Appellant to work-related stressors and/or Mr Large to a number of health professionals who had seen the Appellant during 2012 through to early 2014.
  1. [58]
    Counsel for the Appellant submitted that the Appellant should not be penalised because he had not made complaints to Management about Mr Large's alleged behavior.  Rather, it is submitted that it was up to Management to control the situation because it was such a known factor.  I have not accepted that proposition.  The Appellant did not appear to have any difficulty in complaining to Management about a number of issues of concern to him during his period of employment at the Mine [see Exhibits 25 and 26].  In this context, I have accepted Ms Gayler's evidence that she had not been aware of any complaint from the Appellant concerning Mr Large until 2014. 
  1. [59]
    I have accepted the evidence of Mr Willcockson and Mr Wheraru to the extent that there was bickering and name-calling between the Appellant and Mr Large on occasion and that it appeared that this acrimony had caused the Appellant stress.  I have not accepted that the nature of the complaints made by the Appellant concerning Mr Large were as frequent, extreme, or as threatening as complained.

(C) Working with Co-workers

General Particulars of this Claim

  1. [60]
    The Appellant stated that he was the subject of practical jokes from co-workers.  On one occasion he was left waiting for one and a-half hours to be picked up from the site saying that he had been intentionally left without fuel for his minivan.
  1. [61]
    The following identified the type of comments alleged to have been made to him by co‑workers:
  •   questions about his sexual orientation;
  •   having sex with sheep;
  • asking if he was having regular sex with supervisors as an explanation for him being put in the Pit Control Role; and
  • making derogatory comments about his girlfriend and generally mocking his romantic life.
  1. [62]
    The names of some co-workers who were said to have spoken in derogatory terms to the Appellant were mentioned in the opening submissions of the Appellant, but those names were not contained within the Appellant's Statement of Facts and Contentions and these workers were not called to give evidence.
  1. [63]
    Mr Wairau stated that words such as "you're a poofter", "you're a gay", "you're a homo", were heard at work but he had not heard those words attributed to the Appellant.

Evidence concerning this claim

  1. [64]
    Mr Willcockson and Mr Wharerau said that Mr Large behaved and spoke badly towards the Appellant in the presence of co-workers who also made derogatory comments to the Appellant. 
  1. [65]
    Mr Willcockson recalled, on a regular basis, Mr Large belittling the Appellant to other co-workers saying that the Appellant was hopeless and could not do his job.  He observed Mr Large behaving in this manner on a regular basis.
  1. [66]
    These alleged comments from co-workers is problematic.  With regard to allegations concerning co-workers, Dr Levien, Psychiatrist, said that the Appellant had told him that he not raised these issues with Management.
  1. [67]
    The co-workers to whom those comments were attributed have not given evidence in this matter. 
  1. [68]
    I have not doubted that the words so alleged by the Appellant were used at the workplace and that he was in the vicinity when those words were used.  However, as to who said them and to whom they were directed is unable to be fairly considered on the evidence available. I am also conscious of the medical evidence to the effect that the Appellant had a heightened sense of paranoia, stress and "hypervigilance" during the period under consideration.  I have also concerns about the Appellant's claim that 55 of the 60 workers on the site, hated him.   In my view, this claim is implausible.

(D) Complaints to Management

General Particulars of the claim

  1. [69]
    The Appellant said he had lodged complaints concerning Mr Large with Management prior to 1 August 2014, but no disciplinary action had been taken against him.  As at 1 August 2014, the Appellant said he had felt anxious around Mr Large as he had previously threatened him and he was known to be a violent person.
  1. [70]
    It has been submitted that failure on the part of Management to intervene or to otherwise control the repetitive workplace bullying, contributed to the Appellant's onset of his adjustment disorder.

Evidence concerning this Claim

  1. [71]
    I have decided to consider in detail the complaints which had been made by the Appellant to management and its response to those complaints.  This is necessary in my view because the Appellant has claimed to Dr Levien and Dr Wong that Management had not responded to his claims and that this was in a large part causative of his eventual decompensation.  Dr Wong's view was that "the lack of action by management after his repeated requests for help is largely harmful to his mental health".
  1. [72]
    The Regulator claimed that it was telling that the Appellant had not complained more frequently to Management concerning Mr Large's alleged behavior and that of co‑workers.  This is rejected by the Appellant on the grounds that:

 "It is for the employer to ensure that workmen, including the Appellant, were not subjected to treatment of the nature of that that was given to the Appellant when the treatment was as obvious as it was in this instance." [Appellant submissions, point 57]

  1. [73]
    The Appellant says that there was nothing in the evidence of  the Regulator's witnesses, viz., Ms Gayler, Mr Cuthbertson and Mr Milner, to suggest that the events complained of by the Appellant as giving rise to his decompensation, did not occur.  Ms Gayler's evidence, however, was that she had not received complaints from the Appellant concerning Mr Large.  I have accepted that evidence.
  1. [74]
    The receipt of the Appellant's Medical Certificate on 5 August 2014, citing persistent bullying, threats and intimidation at work, appears in the Appellant's view to have been disregarded by Ms Gayler as she took no further steps to inform herself of the circumstances giving rise to the claim. This claim is rejected by Ms Gayler.  Her evidence is that she and Mr Duncan Randall visited and spoke to the Appellant after a meeting on 5 August 2014 to ascertain his well-being.  I have accepted that evidence.
  1. [75]
    Mr Milner was forwarded a copy of an email from the Appellant to Mr Cuthbertson on 4 March 2014 and on 1 August 2014, he was the recipient, amongst others, of another email from the Appellant.  These emails were tendered as Exhibits and are considered further below.
  1. [76]
    Mr Cuthbertson's evidence was that in responding to the Appellant's complaints, he took appropriate steps to meet with the Appellant to expand upon his complaints but he said the Appellant had not responded to his requests.
  1. [77]
    Both Mr Cuthbertson and Mr Milner denied that the Appellant had complained to them of daily or weekly abuse by Mr Large and other employees as alleged by the Appellant.
  1. [78]
    The evidence given by Mr Cuthbertson relative to complaints from the Appellant and responses thereto, or minutes of meetings etc. is found in correspondence contained within a number of Exhibits tendered.
  1. [79]
    In chronological order those Exhibits are detailed hereunder.

Appellant's Complaints to Management and its Responses

  1. [80]
    Exhibit 13 is Minutes of a meeting held on 28 October 2013, compiled by Ms Gayler.  The meeting was held between the Appellant and Management.  At this meeting, issues were raised relating to the Appellant being late for work, protocols advising of absences and the Appellant feeling he was being treated unfairly.  Ms Gayler recorded that in that meeting, she advised the Appellant that the best practice concerning absences was for the Appellant to call prior to the start of the shift. 
  1. [81]
    The next issue related to crib breaks.  The Appellant complained that he had no organised crib breaks with Mr Wairau.  He said he did take smoking breaks and Ms Gayler enquired whether Mr Wairau might have thought the Appellant was taking the equivalent crib breaks when on smoking breaks.  The Appellant believed he had been watched as to how many smoking breaks he was taking.  Ms Gayler's response was that the Appellant could instigate a grievance and talk to Mr Wairau about this and if it wasn't resolved he could raise a formal written grievance.  Ms Gayler advised the Appellant of the correct approach he should adopt with regard to those issues.
  1. [82]
    Exhibit 25 is a copy of correspondence dated 4 November 2013 from Mr Wairau to Mr Milner stating as follows:

 "As discussed Dave Nutley inquired about structured crib breaks in Pit Control.  I responded by telling him due to the nature of the role, flexibility is required so take a break when things are quiet.  Dave spends the majority of the shift out in the smoking area so it seems that he is managing his breaks effectively.

  1. [83]
    Exhibit 14 is Minutes of a meeting held on 13 November 2013 with the Appellant, Mr Fox, Mr Willcockson, Mr Cuthbertson, Mr Milner and Ms Gayler.  The issues considered at that meeting related to; crib breaks/smoko breaks, absence management process, roster hours/Pit Control hours and fatigue assessment form/process.  Agreement was reached on those matters.
  1. [84]
    Exhibit 3 is a formal complaint by the Appellant against Mr Wairau, received by Management on 20 November 2013.
  1. [85]
    Exhibit 4 is correspondence from Mr Cuthbertson dated 21 November 2013, regarding the formal complaint by the Appellant and meeting held prior on 13 November 2013.  Inter alia, that correspondence recorded that:

 "During this meeting, we discussed each point in detail with you, and at the end of the meeting you agreed that these matters had been fully resolved. 

 If you have any additional grievances you would like to raise that have not already been discussed and resolved, I request that you put these in writing so that we can formally address these for you."

  1. [86]
    Exhibit 5 is correspondence of the Appellant dated 21 November 2013, relating to a complaint from the Appellant concerning issues with Mr Wairau. 
  1. [87]
    Exhibit 26 is correspondence from Mr Wairau to Mr Milner on 22 November 2013.  This correspondence relates to the Appellant's claim concerning the lateness of providing shift reports and Mr Wairau's account of the comments made by the Appellant to him at the time.
  1. [88]
    Mr Wairau said:

 "I asked him why it was taking so long, he said the truckies hadn't called their loads in.  I then asked Dave why he hadn't chased this up with the truckies as this is what would normally happen, he responded by saying I shouldn't have to tell them, I then said well that is part of your job… Dave then said that he would probably not worry about asking the truckies to call their loads in for the rest of the week".

  1. [89]
    Mr Wairau asked the Appellant what the figures were at the end of shift.  The Appellant replied that he didn't know and when asked if he had printed the report, the Appellant advised that he had not done so.
  1. [90]
    Mr Wairau believed that the Appellant was acting out of character at this time.  He added:

 "I have also supported him when he has had numerous personal issues outside work over this period (propped him up when he was on the verge of breaking down at work), tolerated him sleeping in on multiple occasions, accepted a sub‑standard performance due to having no relief Pit Controller and supported his application to get out of control onto trucks consequently earning a pay re‑classification.  I also travelled with Dave when I used to fly in and out of Mackay so I do know him quite well.  So you would understand that his behavior on Monday night was very disappointing to me personally when all I have done is gone out of my way to support and look after him during his employment at Middlemount Coal".

  1. [91]
    Exhibit 6 is further correspondence from the Appellant to Mr Cuthbertson dated 29 November 2013, referring back to the meeting of 13 November 2013, where the Appellant agreed that some issues were discussed and finalised.  However, the Appellant said the attitude of Mr Wairau had not altered and Ms Gayler had advised him that she could not comment upon those issues as they were pending an investigation.  The Appellant's complaint was that he had not received the outcome of any findings of those outstanding matters.
  1. [92]
    Exhibit 15 is correspondence dated 29 January 2014 by Mr Pierce (the Appellant's Union representative of the CFMEU) to Ms Gayler, concerning the Appellant's complaints.  Mainly the correspondence relates to the Appellant complaining that he had raised issues with Mr Cuthbertson which remained unresolved.
  1. [93]
    Exhibit 22 is a File Note by Ms Gayler regarding a telephone call she made to the Appellant on 29 January 2014.  The File Note records that a letter had been received from the CFMEU on behalf of the Appellant.  The correspondence related to a complaint made by the Appellant concerning Mr Wairau.  When contacted by Ms Gayler, the Appellant advised that he would need to speak to someone else before he could provide any further information.
  1. [94]
    Exhibit 23 is a File Note of Ms Gayler dated 30 January 2014.  The Appellant advised that he was going to speak to Robert Fox (a co-worker) before he provided any information to Management.  Ms Gayler spoke to Mr Fox who said that Management should speak to the CFMEU as the Appellant was not going to speak to anyone from Management. 
  1. [95]
    Exhibit 16 is correspondence sent by Ms Gayler in response to Mr Pierce (CFMEU) on 31 January 2014.  Ms Gayler advised that as of 31 January 2014, the investigation had not been finalised.  In advising the reason for the delay, Mr Gayler set out as follows:

 "I can also confirm there have been delays in the process due to the following:

  • A meeting was scheduled with Mr Nutley on 11/12/13 to discuss this matter further and gain more information from Mr Nutley to enable the investigation to progress.
  • On the day of the scheduled meeting Mr Nutley advised Mr Cuthbertson that he was unable to attend this meeting.
  • It was discussed at the time that Mr Nutley should contact Mr Cuthbertson on his return to work the following week and advise a suitable time to reschedule the meeting.
  • No contact was made to Mr Cuthbertson to reschedule the meeting when Mr Nutley returned to site.
  • I have since attempted to reschedule this meeting this week, but was unable to do so as I have been advised by Mr Nutley that he won't be discussing the matter any further with myself, or anyone from Middlemount Coal.
  • I would also like to note that Mr Nutley has confirmed to me that the concern he has is not safety related.

 The Company's attempts to gather more information from Mr Nutley to further investigate this matter for him and resolve the matter have not been successful to date due to the reasons listed above."

  1. [96]
    Exhibit 7 is correspondence of Mr Cuthbertson to the Appellant dated 4 February 2014 wherein he reaffirms the statement made by Ms Gayler [see Exhibit 16].
  1. [97]
    Exhibit 8 is correspondence of the Appellant to Mr Cuthbertson on 3 March 2014, raising a formal complaint about an incident that occurred on 2 March 2014.  The letter contains a considerable number of complaints made against Mr Large.  The first complaint related to "a breach of a standard operating procedure".  When the issue was raised with Mr Large, he allegedly responded with "Ha Ha.  Report me then David".  On the same day an operator had asked Mr Large if he "had been a naughty boy again", to which he is said to have responded "No, just an asshole trying to frame me".  Allegations were made that Mr Large had told the Appellant that "we'll sort this outside of work".  The Appellant also referred to "childish behaviour" on the part of Mr Large relating to hazard reports.
  1. [98]
    The Appellant told Mr Wairau that Mr Large had been behaving in an uncooperative manner, and he claimed that Mr Wairau seemed uninterested.  The Appellant believed that Mr Wairau did not want him to report the incident and he had felt threatened.
  1. [99]
    The Appellant took it upon himself to hand the report into Management because:

 "I do not have faith in the senior supervisor to take the correct actions, nor do I feel he is approachable.  Dave [Mr Wairau] has again come across in an intimidating way.  Dave has a favouritism issue on his crew."

  1. [100]
    Exhibit 11 is correspondence of the Appellant sent to Management on 1 August 2014, wherein the Appellant alleged that on 1 August 2014, Mr Large had called him "a dickhead" on the two-way radio.
  1. [101]
    In that correspondence to Management, the Appellant again complained about Mr Large, repeating that Management had not responded to his concerns.  He added: 

 "I have seeked [sic] help from the Employee Assistance Program on three occasions and have found them unhelpful.  Human resources and mining Manager Darren Cuthbertson are aware the EAP could not provide the effective service, to which I seeked [sic] my own professional councilling [sic]".

  1. [102]
    Exhibit 17 is a File Note of Ms Gayler from a meeting of 5 August 2014.  Present at that meeting was the Appellant, Mr Milner, Ms Gayler and Mr Pierce (CFMEU). 
  1. [103]
    The issue of the "near miss" with trucks driven by the Appellant and Mr Large was discussed.  The alleged event was investigated by Management and the view of other operators and the OCE was that the events so described by the Appellant were not near misses.  The Appellant agreed, this issue was resolved.
  1. [104]
    When discussing the Appellant's claim that he had repeatedly complained about Mr Large's behavior towards him, the Appellant referred to a particular incident where Mr Large had "threatened to knock my head in".   He said this had occurred some 12 months prior to this meeting but Ms Gayler had not recalled seeing any statements about this previously.
  1. [105]
    The meeting also addressed the Appellant's claim that there had been no feedback from Management concerning his complaints.
  1. [106]
    In the course of considering this complaint, a further complaint was received from the Appellant.  Management on two occasions required more information from the Appellant but this was not forthcoming.
  1. [107]
    Ms Gayler reiterated that she had written to the Appellant on 4 February 2014, again advising him the points she had made about his non-cooperation [see Exhibit 16]. 
  1. [108]
    Additionally, in response to the Appellant's claim that others at the workplace knew about his Court case, Ms Gayler said she had spoken to the Appellant and advised him that he should be careful in sharing this type of private information with others at the workplace.
  1. [109]
    Exhibit 18 is a File Note dated 5 August 2014, recording that Mr Randall and Ms Gayler attended the camp to check on the well-being of the Appellant as they had received his Medical Certificate [see Exhibit 12].
  1. [110]
    The Appellant advised that he had not continued to see the Counsellor from EAP as he did not believe the process was working and that he did not like the process where they were asking him to consider his situation from both perspectives.  The Appellant indicated that he would see a Counsellor in Townsville if Mr Pierce could attend with him, otherwise he would agree to have another support person from his crew instead.
  1. [111]
    Exhibit 24 is correspondence dated 22 August 2014, from Management to Mr Large which states:

 "I write to you with regard to a recent incident on 1 August 2014 where you were involved in a two way conversation with a fellow mine worker on site in which you used a swear word toward them.  This was confirmed when checking the two way radio recordings for that day.

 We met with you on 4 August 2014 to discuss the outcome from the investigation into this matter.  As such your conduct in this situation was deemed unacceptable as you have not complied with the Middlemount Coal Behaviours site practice.

 It should be noted that should any further incidents of unacceptable behaviour occur, this may result in further disciplinary action or termination of your employment from Middlemount Coal.

 A copy of this letter has been placed onto your employee file."

[Note:  Mr Large was removed from the B Crew as a consequence of the Investigation of the incident of 1 August 2014.]

Consideration of Management's Response to Appellant's Complaints

  1. [112]
    In considering these Exhibits as summarised above, I am unable to accept the claim that Management did little to nothing with regard to his concerns.  The material clearly shows that reasonable management action was taken in a reasonable manner by the Mine towards the Appellant's concerns.  If anything, it shows that on each occasion when the Appellant complained, there was a punctual response from Management.  On each occasion when further information was required from the Appellant regarding his complaints, there was no response from the Appellant.

MEDICAL EVIDENCE

Visits to General Practitioners

Middlemount Medical Centre

  1. [113]
    During 2014, the Appellant had attended the Middlemount Medical Centre where on 3 January 2014 it was reported that he "has psychology previously - is interfering with work" [Exhibit 10].  On 5 June 2014, the Appellant reported asthma problems. 
  1. [114]
    It was only on 4 August 2014, that the Appellant saw Dr Campbell who recorded the type of issues the Appellant has raised in this Appeal.

Limestone Medical Centre

  1. [115]
    In 2012 there had been no mention of work-related problems at his appointments with General Practitioners at the Limestone Medical Centre.  Similarly on 6, 13 and 30 January 2014, 11 February 2014, 1 and 6 May 2014 and 4 July 2014, there were no work problems mentioned.  [Exhibit 9]
  1. [116]
    However, on 16 July 2014, Dr Coote noted:

 "Work stressful lately.  Exacerbation of PTSD symptoms; Anxious feeling persecuted, fearful that others are constantly watching and judging... GP mental health plan review completed… Further psychology sessions.

  1. [117]
    On 15 August 2014, the Appellant saw Dr Thomas and the reason for the visit was recorded as "WC".

Ms Stewart, Psychologist

  1. [118]
    On 6 January 2014, the Appellant's General Practitioner (Dr Thomas) referred him for treatment to Ms Lauren Stewart, Psychologist.  He was considered to be suffering from PTSD. 
  1. [119]
    Ms Stewart's clinical notes provide records of seven consultations with the Appellant from 7 January 2014 to 19 August 2014.  [Exhibit 21]
  1. [120]
    In the first consultation with Ms Stewart on 7 January 2014, the Appellant had not made any reference to problems associated with his work.  Rather, he referred primarily to matters relating to an incident of sexual assault he had suffered (non-work-related).  At that consultation, Ms Stewart's notes refer to the Appellant using cannabis to cope with his problems.
  1. [121]
    On 20 January 2014, Ms Stewart's notes recorded that "Reported using ICE recently".
  1. [122]
    On 11 February 2014, Ms Stewart recorded that:

 "Stated things at work have improved.  Stated placing in a complaint about main boss after he made him work on a few hours' sleep.  Reported did not intend for this complaint to go higher, however, reported getting support from higher bosses.  Stated frustration that work colleagues know that he has a court date.  Reported focusing himself to interact more and has been finding grounding strategies helpful."  [Exhibit 21]

  1. [123]
    As of 25 February 2014, Ms Stewart's notes recorded the Appellant advising that work "is really good".  Her notes further recorded that:

 "Stated driving a truck at the mines, however, he is not mechanical like masculine guys and feeling like this is highlighted in the mines."

  1. [124]
    A mention of his work environment was made on 11 March 2014, where Ms Stewart's notes show:

 "Stated having to report a workplace incident involving another colleague as part of workplace policies and procedures.  Stated has never gotten along with this colleague and feels he is making subtle threats about the client losing his job… Reported some feelings of paranoia at work as a result."

  1. [125]
    During this period of time, the Appellant was facing a Court case relating to another non-work-related incident and on 4 June 2014 had been discussing this issue with Ms Stewart.  He had reported that the Police had escalated the matter.
  1. [126]
    On 15 June 2014, the Appellant had particularised increased stress and paranoia as a result of reported bullying in the workplace.  Ms Stewart's clinical notes record:

 "Stated that all but five of the workers (60 in total) hate him.  Stated that they have not liked him for the last three years working there and does not know why.  Reported putting in bullying claims to HR and followed up with the union, with nothing being done about this.

  …

  Reported that his supervisor was also not lenient when he slept in for work on a few occasions as a result of stress leading up to the court case."

  1. [127]
    At this meeting Ms Stewart also recorded that: 

 "[The Appellant's] Speech was fixated on others scheming to have him fired, particularly management and having to continuously watch his back when around others.

  …

 Client was very guarded and defensive around any possibility that things may be seen a little more extreme in light of his previous trauma and PTSD symptoms."

  1. [128]
    When asked in Re-Examination about her comments in correspondence to Dr Thomas (referring General Practitioner) dated 14 July 2014, Ms Stewart agreed with the Regulator's proposition:

 "Mr Merrell: … the experience of others bullying in the workplace may also be exacerbated by post-traumatic stress symptoms and lack of trust and connection with the reported past trauma?

 Ms Stewart:  Yes" [T3-10]

  1. [129]
    Further, Ms Stewart stated that:

 "… he was reporting feeling paranoid about others and difficulties around [indistinct] and have at different times in my notes appeared to have reported consistently, also having feelings of difficulties around trust.  And with the post‑traumatic stress [indistinct] towards the hyper-vigilant and concern around others.  I was querying in my notes here around what other influences could have had on his view in regards to work, because in my notes - in some of my progress notes I've written, again, that he's reporting that the majority if not all of his 60 colleagues hating him, and have done for a number of years."  [T3-11]

  1. [130]
    Overall, the thrust of Ms Stewart's clinical notes relate to the effects on the Appellant of his sexual assault together with his apprehension concerning a pending Court case which had also occurred outside of the workplace.  There was commentary regarding work-related problems around June 2014, to the extent that someone had been bullying him at work and that 5 of the 60 persons he worked with at the Mine, hated him.
  1. [131]
    It is significant that the Appellant at no time told Ms Stewart that he had been bullied on a daily or weekly basis by Mr Large and other employees for the past two years and nine months.
  1. [132]
    I have accepted the overall opinions of Ms Stewart.  Of note is that the Appellant said he had been using cannabis to cope with his problems.  The Appellant, in June 2014, reported a heightened degree of stress and paranoia as a consequence of workplace bullying. 

Dr Levien, Psychiatrist

  1. [133]
    Dr Levien saw the Appellant on 2 February 2015 and provided a Report dated 13 February 2015.  [Exhibit 20]
  1. [134]
    On that date he had not viewed Ms Stewart's clinical notes, but had done so by the time of the hearing of this Appeal.
  1. [135]
    He noted that the matter was complex because the Appellant had incurred alleged bullying and harassment prior to his sexual assault and after that episode.  The complexity was that there would appear to be a melding together of the symptoms coming from one discrete event and then followed by a series of multiple events.  Dr Levien stated that the Appellant's injury was that of a Chronic Adjustment Disorder with Anxious and Depressed Mood, caused by his work.  The Appellant's PTSD emanated from his sexual assault. 
  1. [136]
    The history provided by the Appellant to Dr Levien was as follows:
  • The Appellant had referred to difficulties experienced with Mr Large who objected to receiving directions from a young employee.   When giving Mr Large directions, Mr Large would swear at him.
  • The Appellant claimed considerable stress from having been placed for about 12 months, in a position for which he did not believe he was suitably qualified.
  • He complained of the type of comments made to him identified in paragraph [61] of this decision.  The Appellant advised that he had never put in a written complaint to Management about this behaviour.
  • The Appellant had claimed to have severe self-esteem problems as these comments had been made after he had been sexually assaulted. 
  • Dr Levien said that the Appellant had referenced some specific complaints made to him by Mr Large.  The complaints included the abuse over the two‑way radio; in calling him a "fucking idiot" and that the Appellant should be "able to sort your own shit out".  He noted that Mr Large had on one occasion apologised to the Appellant.
  • The Appellant reported the comments made by Mr Large to the effect that "I'll get you back at camp" and threatening to "punch me out".
  • Prior to August 2014, the Appellant advised Dr Levien that he had written to Management on at least four occasions but that Management would not accept his complaints.  He then contacted his Union from 2013 onward and while a meeting was convened, no further action was taken.
  • The Appellant had also complained about his Supervisor, Mr Wairau, as previously mentioned.
  1. [137]
    The critical incident of 1 August 2014, was described as follows by Dr Levien:

 "The final incident (witnessed) occurred on the 1st August 2014.  Mr Nutley claimed he was abused in front of two co-workers and statements such as 'you are an f … ing idiot and if you don't f… ing know I'm not going to tell you'.  Mr Nutley felt insulted but also at risk of assault - he states that Mr Large is a man known to be violent towards his wife and has a reputation as a 'big fighter'.  Mr Nutley felt at risk of injury from Mr Large and was then unable to return to work."

  1. [138]
    In giving evidence, Dr Levien said that the Appellant viewed his injury as being caused by hostile interactions with Mr Large and uncertain management action. 
  1. [139]
    Dr Levien said that the Appellant had reported using ICE but when advised by the Regulator that the Appellant had denied using drugs in February 2015, Dr Levien5agreed that the Appellant may not have been telling the truth regarding his drug use.  [T2-101] 
  1. [140]
    Dr Levien believed that the Appellant had become "hypervigilant" to some extent regarding matters occurring at work. 
  1. [141]
    Overall, Dr Levien said that:

 "He was sexually assaulted.  He was sort of dealing with it.  He was obviously using more substances than he was open to myself about.  But then it's a sort of vigorous male environment continuing at work.  Despite his complaints, it was gradually wearing him down and - and landed him finally having to leave work."  [T2-103] 

  1. [142]
    Dr Levien was of the opinion that the PTSD was still there, but it was not interrupting his attendance at work.
  1. [143]
    Dr Levien's assessment is that the Appellant suffered a workplace injury:

 "Mr David J. Nutley has suffered a workplace injury - Adjustment Disorder with mixed anxiety and depression.  He also attracts a diagnosis of Post Traumatic Stress Disorder for a non-work-related assault.  He is currently still markedly symptomatic and unable to return to any place of work.  He is receiving intensive psychiatric treatment but on examination he clearly shows signs of both marked anxiety and depression together with Post Traumatic Stress Disorder." [Exhibit 20]

  1. [144]
    However, Dr Levien said that if there had been no corroboration of the events described by the Appellant in the workplace, he would consider reviewing his opinion as to whether or not work was the major significant contributing factor to the Appellant's adjustment disorder.  This review would relate to a consideration of the following factors:

"1. Examination of the emails the Appellant claims he sent both to his Union and to Management;

 2. More detailed reports from his general practitioners who were gaining a full history at the time of the alleged offences;

 3. Detailed witness statements to key events;

 4. Response from Middlemount Mine Management about what efforts were made to address the specific complaints;

 5. The Appellant's mental state does create a somewhat disorganised narrative. It may be that he needs to, in a more structured way, relate the various key incidents and provide objective evidence; and

 6 It may also be useful to gain and independent narrative from his treating psychiatrist reviewing the key events; as the Appellant clearly has had more time to provide much greater detail about the key alleged events during therapy sessions." [Exhibit 20]

 Dr Levien's Provisos and Findings

1. Examination of the emails the Appellant claims he sent both to his Union and to Management

  1. [145]
    In considering these factors, it is clear that the emails from the Appellant to Management, outline his concerns relating to sporadic events which occurred at the workplace.  These emails have been identified in paragraphs [80] to [111].
  1. [146]
    In those emails, there had been no mention of Mr Large and any alleged bad behavioral issues on his part, until around February 2014.

2. More detailed reports from his general practitioners who were gaining a full history at the time of the alleged offences

  1. [147]
    In terms of other Medical Practitioners who had seen the Appellant over the period of time in question, it is noted that there had been no reference to work-related matters over that time from 2012 to around mid-2014.

3. Detailed witness statements to key events.

  1. [148]
    The corroborative evidence which supports the Appellant's claims have been detailed in this Decision.  Both Mr Wharerau and Mr Willcockson gave evidence that the Appellant had been spoken to in derogatory terms by Mr Large on a reasonably regular basis.  It is noted however, that there is no evidence of abuse and harassment being metered out to the Appellant on an almost daily basis.  I am unconvinced that the claims of Mr Willcockson and Mr Wharerau of relentless bad behaviour on the part of Mr Large, occurred as described.
  1. [149]
    Also the Appellant had advised Dr Levien that he never made a complaint to Management about the alleged behaviours of other co-workers.  As well, I have accepted the Regulator's contention that it was unusual that there had not been complaints made to Management concerning the Appellant's views regarding Mr Large at that time.  Contrary to the Appellant's submissions, I accept that Management were not aware in any detail of the complaints the Appellant was making.  This is also confirmed by Ms Gayler.  In light of that, I have formed the view that the Appellant's concerns regarding Mr Large did not eventuate in any real sense until around mid-2014 when some specific events were described.

4. Response from Middlemount Mine Management about what efforts were made to address the specific complaints.

  1. [150]
    In terms of responses from Management to those emails, reference is made again to paragraphs [80] to [111] of this Decision.  In all cases, Management has taken what I view to be more than reasonable steps to investigate the Appellant's concerns and to provide appropriate responses to him.  In some cases, Management advised the Appellant of the correct manner in which matters should be addressed and in others, reconciled matters to the Appellant's satisfaction.
  1. [151]
    The evidence is also clear that when Management sought to gain further information and attendance from the Appellant that was not forthcoming.

5. The Appellant's mental state does create a somewhat disorganised narrative.  It may be that he needs to, in a more structured way, relate the various key incidents and provide objective evidence.

  1. [152]
    There has been an attempt to do this in the progression of the hearing. 

6 It may also be useful to gain and independent narrative from his treating psychiatrist reviewing the key events; as the Appellant clearly has had more time to provide much greater detail about the key alleged events during therapy sessions."

  1. [153]
    There were no treating Psychiatrists over the period of time under consideration.  Ms  Stewart, Psychologist, was the health professional who had seen the Appellant during this period and the Appellant had been able to discuss issues with her that had arisen which caused him concern and stress.  Most of these had no connection with his work situation and Mr Large.  The first mention of work related matters occurred in March 2014.
  1. [154]
    At the time under review, it should be again noted that the Appellant had been suffering from PTSD concerning a sexual assault and then later into 2014, an appearance before the Courts with regard to another non-work-related matter which, in his words "the Police had begun escalating". 

 Dr Wong, Psychiatrist

  1. [155]
    Dr Wong provided a report dated 27 May 2016 [Exhibit 19].  Dr Wong's evidence was that he had first seen the Appellant on 29 October 2015 and had viewed Dr Levien's Report at that time.
  1. [156]
    The Appellant had reported to him that he had undergone 18 months of harassment and bullying at work.  He advised that on 1 August 2014, a significant traumatic event had occurred which necessitated his leaving work.
  1. [157]
    Dr Wong said that the Appellant's condition was "intertwined - interplay between two conditions.  One is work-related and the other one is not work-related".
  1. [158]
    In Cross-Examination, Dr Wong said that the Appellant was experiencing some PTSD symptoms of partial remission.
  1. [159]
    In terms of co-workers who were of concern to him, the Appellant had mentioned Mr Wairau "briefly" but concentrated more upon Mr Large's behavior towards him.  He told Dr Wong that being required to work as a Pit Controller without experience was the cause of his anxiety together with the lack of Management action after his repeated requests for help.
  1. [160]
    In response to the proposition from the Regulator that if what the Appellant had claimed was not necessarily correct, would Dr Wong have reconsidered his opinion.  Dr Wong responded:

"The lack of action by the management after his repeated requests for help is particularly harmful to his mental health.  The truth finding of the various work related traumatic events and the failure of the administrator to respond to his repeated plead for help are outside of my area of expertise.

…

 "I still find - find it difficult to explain why he could have such severe adjustment disorder with anxious and depressed mood from work. But if he - where's it from?   It's got to come from somewhere".  [T2-83]

  1. [161]
    In saying that, Dr Wong agreed that the Appellant's PTSD had made him more vulnerable.
  1. [162]
    The Appellant had advised Dr Wong that he had been using cannabis in 2015 and 2016.  Dr Wong commented that:

 "… all I can say is he certainly wasn't well after the rape, but nevertheless, he continued to persist at work and it is not until 1 August 2014 after another traumatic incident that he stopped work."  [T2-86]

  1. [163]
    From the information provided by the Appellant, Dr Wong believed that Mr Large was the "main offender". This was particularly so in relation to the event on 1 August 2014 and this represented the "final straw" which had destroyed the Appellant's confidence "making him too fragile and fearful to return to work in the mine".
  1. [164]
    Dr Wong concurred with Dr Levien in that the Appellant's condition was intertwined between two conditions; one work-related and the other non-work-related.  He also concurred with Dr Levien in that the Appellant's PTSD was still present but that there were, from Dr Wong's perspective, some symptoms of partial remission.  Dr Wong agreed that to some extent the effects of the Appellant's PTSD and social anxiety could affect the Appellant's perception of what was occurring at the workplace.

REGULATOR'S SUBMISSIONS

  1. [165]
    The Regulator has questioned the Appellant's credibility as it relates to:

 "(a) The effect the sexual assault had on the Appellant's mental state;

 (b) The Appellant's allegations of daily abuse from Mr Large, Mr Wairau and other mentioned employees over a period of two years and nine months;

 (c) The Appellant's claims to Dr Levien and Dr Wong concerning a lack of management action after his requests for help. The role those allegations played in their opinions and the Appellant's failure not to refer to those matters in any detail in his Evidence-in-Chief; and

 (d) the Appellant's claims to Dr Levien about the other matters the Appellant claimed happened in the workplace." [Regulator's submissions]

  1. [166]
    Further, the Regulator stated that the Appellant was not a person of credit because he:
  • As of 2015, denied to Dr Levien any past use of cannabis or amphetamines;
  • Told Dr Wong he was using cannabis in 2015, 2016 and 2017; and
  • On 20 January 2014, told Ms Stewart that he recently had taken ICE  (crystal methamphetamine).
  1. [167]
    However, in Cross-Examination, the Appellant had:
  • Denied taking ICE / crystal methamphetamine in 2014;
  • Denied telling Ms Stewart, in January 2014, he recently took ICE (crystal methamphetamine); and
  • Refused to answer the question put to him that in 2014, he was taking cannabis on a regular basis.   His refusal to answer that question was based on the grounds that it may incriminate him.
  1. [168]
    The Regulator submits that against that denial to answer a question related to alleged drug taking by the Appellant, the Commission should draw the inference that the Appellant was taking cannabis on a regular basis in 2014.  His refusal shows that the Appellant had not been truthful as, by his own admission, he admitted that his own drug-use was making him feeling paranoid.  [Exhibit 21]
  1. [169]
    I accept that the above submissions of the Regulator are factually based from the evidence and, in my view, are detrimental to the Appellant's credibility.
  1. [170]
    While Ms Stewart's records of 7 January 2014, show no mention of the Appellant being bullied at work for a period of more than two years or mention of anything about Mr Large or Mr Wairau or a number of other co-workers, the Appellant stated that he had in fact told Ms Stewart "everything about work".  He said that work was the first topic that came up because that's what he said he was struggling to get back to.  The Appellant also denied saying to Ms Stewart that work was "really good" in his consultation on 25 February 2014.  I have not accepted the Appellant's view with regard to this claim.  I have accepted Ms Stewart's records and evidence as being factually correct.
  1. [171]
    The Regulator submitted that the reason why the Appellant had not referred (in his Examination In-Chief) to the steps Management had taken regarding his complaints, was that Management had taken reasonable steps in response to those claims.  I have accepted that proposition.  The belated change in the Appellant's submissions concerning management action leads fairly to that conclusion.
  1. [172]
    Within that context, the Regulator stated that the evidence showed that the Appellant had complained about Mr Wairau in 2013 and March 2014.  In those cases, Management held meetings with the Appellant and his Union representatives.  In the course of those discussions Management had asked the Appellant for more information.  In March 2014 and August 2014, Management responded to the complaint concerning Mr Large by removing him from the B Crew in August 2014.  Notwithstanding this, the Appellant had advised both Doctors Levien and Wong that Management had ignored his complaints.
  1. [173]
    Further, the Regulator said that during the two years and nine months that the Appellant had said he had been bullied and harassed at work he had not make any allegation to any Medical Practitioner during that period of time.  This is against a backdrop of him complaining that he was suffering from loss of sleep, loss of appetite and/or stress and anxiety and constant and daily abuse by Mr Large, Mr Wairau and other employees from September 2011.  I have found that omission of the Appellant's part telling as he had regularly visited General Practitioners.
  1. [174]
    The Regulator's submission is that the evidence establishes that the major significant contributing factor to the Appellant's adjustment disorder was the effect of his perception caused by PTSD.  The Regulator has also outlined its alternative position which relates to the exclusionary provisions of s 32(5) i.e. that reasonable management action had been taken in a reasonable way in dealing with the Appellant's complaints.

CONCLUSION

Did the Appellant incur an injury pursuant to s 32 of the Act?

  1. [175]
    I have not found that the injury sustained by the Appellant is one where employment has been the major contributing factor to the injury.  I have not found the Appellant to be a credible witness in his description of the factors which he says contributed to his injury.
  1. [176]
    I have based this finding on the factors below:
  • I have not accepted that the Appellant on a daily or weekly basis suffered abuse from Mr Large.
  • The Appellant was clearly able to make complaints to Management as he saw fit, but the reality was that there were only a couple of references to Mr Large's behavior towards the Appellant and those matters were dealt with reasonably.
  • Contrary to the Appellant's claim, after the meeting of 5 August 2014, Management determined to see the Appellant after that meeting for the purpose of ascertaining his well-being.
  • I have not accepted that the type of abuse the Appellant says he suffered from Mr Large, Mr Waiaru or other co-workers, occurred over a period two years and nine months.  Had this occurred as alleged, one would question why he had not reported the ailments he said he suffered to his General. 
  • In saying that, I acknowledge the occasions upon which Mr Large had made argumentative and derogatory comments towards the Appellant and while those comments were demeaning, they were not made with the intensity and frequency as described by the Appellant. 
  • The Appellant claimed to both Dr Levien and Dr Wong that lack of management action with regard to his claims, contributed to his injury.  The evidence does not support that contention.  As outlined in this decision, many of the Appellant's other claims made to both Medical Specialists were not supported by the evidence.
  • The provisos place on Dr Levien's diagnosis in paragraph [144] of this Decision
  • Dr Wong's Report wherein he states:

 "The truth finding of the various work-related traumatic events and the failure of the administrator to respond to his repeated plead for help are outside my area of expertise".

  • Dr Levien, under the heading of Diagnosis in his report stated:

 "He also appears to suffer from an Adjustment Disorder with anxiety and depression.  From his account of many stressors within the workplace - see before and his frustration with, as he perceived it, inadequate action by Management."

 In Groos v WorkCover Queensland[1], Hall P stated:

"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."

Matters pertaining to the Appellant's Statement of Facts and Contentions

  1. [177]
    A difficulty with the Appellant's case is that in its Statement of Facts and Contentions, it relies upon the contention that Dr Levien and Dr Wong advised in their Reports that the lack of management action with regard to the Appellant's claims was part of the matrix of events which were causative of the Appellant's injury.
  1. [178]
    In final submissions however, the Appellant stated:

 "There is no suggestion that the consequences of any management action caused or contributed to the Appellant's injury in any way."

  1. [179]
    The Regulator submits that, only after the case had been heard, the Appellant altered its view because it was clear that management action had been taken in a reasonable way.  On that point I concur with the Regulator.
  1. [180]
    In Yousif v Workers' Compensation Regulator[2], Martin J, President stated:

 "In Blackwood v Adams, I referred to Statements of Stressors as setting 'the boundaries of the application'.  More recently, in Carlton v Blackwood, I said:

 'An appellant’s case has to be known before the hearing starts. The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment."  [Footnotes omitted]

  1. [181]
    I have accepted the Regulator's submissions to the effect that the Appellant's employment was not the major significant contributing factor to his adjustment disorder as diagnosed by Doctors Levien and Wong. 
  1. [182]
    There is strength in the Regulator's submission to the effect that the alleged bullying and harassment largely arose out of the Appellant's flawed perceptions caused by the effects of his PTSD and the effects of paranoia which he had agreed had been present from his drug use.
  1. [183]
    To those specific events, Management action has been reasonable in all the circumstances of the case.
  1. [184]
    In WorkCover Queensland v Kehl[3], His Honour President Hall said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case".  It is thus the reality of the employer's conduct and not the employee's perception of it which must be taken into account. 
  1. [185]
    Having made these findings, the Appellant has not sustained an injury for the purposes of the Act where the employment is the major significant contributing factor to the injury.  It should be stated however, that had it been determined that the Appellant had sustained an injury where employment was the major significant contributing factor to the injury, then the exclusionary provision of s 32(5)(a) would apply i.e. reasonable management action was taken in a reasonable way by the employer in connection to the Appellant's employment, as has been determined in this Decision.
  1. [186]
    The Appeal is dismissed.
  1. [187]
    The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
  1. [188]
    Order accordingly.

Footnotes

[1] Groos v WorkCover Queensland 165 QGIG 106

[2] Yousif v Workers' Compensation Regulator [2017] ICQ 004

[3] WorkCover Queensland v Kehl 170 QGIG 93

Close

Editorial Notes

  • Published Case Name:

    Nutley v Workers' Compensation Regulator

  • Shortened Case Name:

    Nutley v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 91

  • Court:

    QIRC

  • Judge(s):

    Swan DP

  • Date:

    16 Oct 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93

Cases Citing

Case NameFull CitationFrequency
Nutley v President of the Industrial Court of Queensland(2019) 1 QR 354; [2019] QSC 1674 citations
1

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