Read Graham Douglas Sergeant AND Q-COMP (C/2010/52) text version

CITATION: Graham Douglas Sergeant AND Q-COMP (C/2010/52) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) appeal against decision of industrial commission Graham Douglas Sergeant AND Q-COMP (C/2010/52) PRESIDENT HALL DECISION [1] By a Notice of Claim for Damages lodged by his solicitors, Graham Douglas Sergeant sought a decision under s. 258 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), which would enable him to claim damages for psychological injuries suffered over a period of approximately six years whilst he was employed at Tip Top Bakeries, North Queensland. By a letter dated 1 September 2009, WorkCover Queensland informed Mr Sergeant's solicitors that WorkCover had decided that Mr Sergeant was a "worker" for the purposes of the Act and that Mr Sergeant had developed a psychological condition. WorkCover Queensland also advised that the psychological condition was not an "injury" for the purposes of the Act. In consequence of that decision, Mr Sergeant did not receive a Notice of Assessment. Mr Sergeant sought a Statutory Review. By a letter dated 25 February 2010, Q-COMP confirmed WorkCover's decision. An appeal to the Queensland Industrial Relations Commission (the Commission) was unsuccessful, see Graham Douglas Sergeant v Q-COMP1. Mr Sergeant now Appeals to this Court. The Commissioner who dealt with the matter at first instance summarised the issues before the Commission as follows: "[2] In this appeal the parties have agreed, and the Commission accepts, that Mr Sergeant is a worker within the meaning of s. 11 of the Act and that he sustained a personal injury being a psychiatric disorder. (The medical evidence differs as to whether the injury was a major depressive disorder or an adjustment disorder but nothing turns on this difference in opinion.) The issues for determination are whether the personal injury arose out of, or in the course of employment, to which the employment was a significant contributing factor and whether, if satisfied of that, the injury is excluded because it arose out of, or in the course of, reasonable management action taken in a reasonable way.". 25 November 2010

[2]

In the result the Commissioner concluded: "[81] Having regard to all of the evidence which is before me, I am not satisfied that Mr Sergeant has discharged the onus of proving on the balance of probabilities that his employment at Tip Top was a significant contributing factor to his injury.".

Issues about the possible operation of s. 32(5)(a) of the Act were not resolved. [3] Mr Sergeant was a long-term employee at Tip Top Bakeries, North Queensland. Tip Top Bakeries, North Queensland is part of the George Weston Foods Group. During the period 1991 to 2000, his employment was uneventful. On Mr Sergeant's case his work-life changed with the appointment of a Mr Schostakowski as Operations Manager. Over the next six years, on Mr Sergeant's case, he was demoted from a senior position, allocated menial work, told not speak to other workers (who were told not to speak to him) and was watched by management as he performed his tasks. In particular, to adopt part of the Commissioner's summary of Mr Sergeant's case: "[4] At a meeting on 17 August 2006 Mr Sergeant was told by the State Manufacturing Manager that he 'didn't like what he was hearing' about Mr Sergeant over the last 12 to 18 months and he should consider finding alternative employment. This was said in a context where no previous disciplinary action had been taken over performance or conduct issues and a satisfactory performance review had been completed the previous week. That night, after the meeting, Mr Sergeant suffered a heart condition and was admitted to hospital.".

[4]

There was much conflict in the evidence about Mr Sergeant's position prior to the appointment of Mr Schostakowski. It is sufficient to go to the evidence led in Mr Sergeant's case. Mr Sergeant variously claimed the job descriptions of Bread Room Manager, Production Manager and Factory Manager. Messrs Warhurst and Santowski asserted that Mr Sergeant was the Production Manager. Mr Cheslett, who claimed to have been the

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Graham Douglas Sergeant v Q-COMP (WC/2010/25) - Decision <http://www.qirc.qld.gov.au>

2 Bread Production Manager immediately before Mr Schostakowski's appointment, gave evidence that Mr Sergeant was the Floor Room Manager. Mr Smith recollected that Mr Sergeant had acted as Manager when the then Manager (Mr Sheahan) was absent. Professor James, a psychiatrist called by Mr Sergeant, was told by Mr Sergeant that he was the Factory and Product Sales Manager. There were documents of doubtful weight describing Mr Sergeant as (variously) the Manager of the manufacturing and distribution department, the Production Manager and the General Manager. The Commissioner's conclusion, that prior to Mr Schostakowski's appointment Mr Sergeant was the Production Manager, was a little brave. However, the conclusion that he held a senior position was clearly open. In any event, there is no Notice of Contention. [5] The positions held by Mr Sergeant in the aftermath of Mr Schostakowski's appointment and the times at which Mr Sergeant held the positions, were matters of uncertainty. It is however clear, as the Commissioner found, that Mr Sergeant ultimately became a maintenance man. The Commissioner's finding that Mr Sergeant was (at one stage) required to perform menial tasks such as lawn-mowing, was a credibility-based conclusion. There is no Notice of Contention. Although the demotion and the demeaning were found to be actual events, in assessing whether Mr Sergeant's admitted psychological disorder arose out of or in the course of his employment and in assessing whether his employment was a significant contributing factor to the condition, the Commissioner put aside Mr Sergeant's demotion and the assignment of menial tasks. Two considerations loomed large in the Commissioner's reasoning. The first consideration was that one of the two psychiatrists who interviewed Mr Sergeant, viz., Dr Varghese, was told by him that the last three years of his employment were the worst. The demotion and demeaning had occurred very much earlier. I hasten to add that, the other psychiatrist by whom Mr Sergeant was interviewed viz., Professor James, was told that Mr Sergeant entertained a major sense of loss as a result of the down-grading. However, that evidence left the Commissioner with the task (discussed subsequently) of assessing whether the sense of loss of identity as a career operator in the bread industry, flowed from the demotion itself or from subsequent perception through the prism of psychological disorder attributable to major cardiac surgery. The second consideration was that Mr Sergeant did not complain about the demotion or the demeaning at the time. I accept that because he continued to be remunerated at management team rates rather than at maintenance rates, Mr Sergeant had an incentive to remain silent. (Mr Sergeant's maintenance skills had been learned on the job.) However, in recognising the rationality of such a decision, one acknowledges that Mr Sergeant was thinking matters through and was coping. Mr Sergeant told the psychiatrist, Professor James, that in or about 2003, he sought treatment (separately) from each of two psychologists. Neither was identified. Mr Sergeant claimed that one was deceased. There is no evidence that the one interview with each psychologist was linked to the demotion/demeaning. The Commissioner was right to treat the case as one in which there was no evidence that Mr Sergeant had sought treatment as a result of his demotion/demeaning. Although the Commissioner accepted Mr Sergeant's case that he had been demoted and demeaned, the Commission did not accept his claims about limits on conversations with co-workers and his claims about surveillance. The Commissioner rejected Mr Sergeant's claim that he was told not to speak to other staff and that other staff were told not to speak to him. The Commissioner accepted that Mr Schostakowski had been recruited from a competitor as a "change-agent" to rebuild the culture at Tip Top Bakeries, North Queensland. Mr Schostakowski's evidence was that over time difficulties developed with Mr Sergeant. As previously noted, Mr Sergeant was a long-time employee at Tip Top Bakeries, North Queensland. He was free with his opinions about the utility and appropriateness of changes introduced by Mr Schostakowski. Because he had some experience with rosters and the payroll, some staff took their queries to him. His opinion was also sought on day-to-day industrial issues. Mr Schostakowski's view was that operational and industrial issues should in the first instance, be raised with team leaders and, if resolution was not forthcoming, with supervisors. More generally, Mr Schostakowski considered that Mr Sergeant should confine his opinions to his own bailiwick. The Commission accepted that ultimately, Mr Schostakowski spoke to Mr Sergeant and to the workforce and put in place directions to exclude Mr Sergeant as a source of advice on operational and industrial matters. One must acknowledge that there were conflicting bodies of evidence. One may speculate that co-workers directed not discuss operational and industrial issues with Mr Sergeant would be highly likely to opt not to be seen speaking to Mr Sergeant at all. (Mr Cheslett gave evidence of being questioned about the content of conversations with Mr Sergeant.) However, the Commissioner who heard and observed the witnesses and observed the trial develop, was best placed to resolve the conflicts in the evidence. The Commissioner's findings of fact are neither inconsistent with incontrovertible facts nor at odds with uncontested testimony. The findings were plainly open. To intervene would be to go beyond correction of error.

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[11]

3 [12] The Commissioner also rejected Mr Sergeant's claim that he was followed around and was constantly observed. The Commissioner preferred the evidence of Mr Schostakowski and of the Production Manger, Mr Rowlands, that only in the aftermath of Mr Sergeant's return to work after heart surgery was he observed (to ensure that he did not over exert himself). Again, one must acknowledge that there were conflicting bodies of evidence. One may speculate that, if Mr Schostakowski was concerned about the content of Mr Sergeant's conversations with co-workers, Mr Schostakowski had an interest in observing with whom Mr Sergeant was conversing. However, the findings were open to a Commissioner who had the very considerable advantage of observing the trial develop and hearing and observing the witnesses. I accept that in other cases one might need to enquire about the impact of apparently innocuous behaviour on a worker with all of his actual frailties. However, in this case, there was a competing potential cause of Mr Sergeant's condition; viz., major heart surgery performed on Mr Sergeant in 2004 and its potential psychological impact. Whilst Professor James and Dr Varghese accepted that the stressors at [3] were capable of causing Mr Sergeant's psychological condition, Dr Varghese warned that a developing post-surgery condition might have caused Mr Sergeant to entertain a false view of transactions in the workforce which even incorrectly perceived were not causative of Mr Sergeant's developing descent into disorder. In a passage reproduced by the Commissioner, Dr Varghese said: "As to the cause of Major Depression, this is a multifactorially determined disorder, meaning that several factors are likely to be of importance including constitutional factors and personality factors, although I note that there is no past history. Although sometimes Major Depression can occur for no apparent reason and may be brought on by involutional issues or underlying medical illness, it is often precipitated by life events or circumstances. In Mr Sergeant's case, the history suggests that his ischemic heart disease, resulting in a quadruple bypass with some ongoing problems, are significant issues. With respect to the work situation the direction of causality is unclear. If one accepts Mr Sergeant's treatment at Tip Top Bakeries, then the matters he nominates would certainly have precipitated a Major Depression or aggravated any depression arising as a result of other factors. Alternatively, a developing depression arising out of issues unrelated to work, such as his medical problems brought about a situation where he came to see the work situation as unsupportive and hostile. Thus, establishing the direction of causality requires a judgement of fact as to the circumstances at work.". It was that evidence which led the Commissioner not to be persuaded that what had actually happened in relation to conversations and surveillance had contributed to Mr Sergeant's psychological condition. (There is not, I should add, any suggestion that the Commissioner wrongly sought for "the" not "a" significant contributing factor.) [14] The Commissioner used her advantage in observing the trial develop in dealing with Mr Sergeant's interaction with the State Manufacturing Manager on 17 August 2006, see [3]. Notwithstanding the gravity of the allegations and that Mr Sergeant was hospitalised for further heart surgery that very afternoon, Mr Sergeant did not tell Dr Varghese about the meeting. He was interviewed twice by Professor James and told Professor James about the interaction at each interview. However, on the first occasion, the interaction with the State Manufacturing Manager was given so little significance that Professor James failed to include reference to the interaction in his report. At paragraphs [78] and [79] the Commissioner observed: "[78] Despite Dr Varghese conceding in cross-examination, after being shown excerpts of the transcript of 17 August 2006, that Mr Johns' comments would have been a significant event, in my view the importance of the meeting of 17 August 2006 has been exaggerated by the Appellant. During the hearing it became almost the sole focus of attention. Perhaps this issue was latched onto because it was rare that there was any hard evidence of Mr Sergeant's treatment in the workplace. The evidence was that the meeting was not initially regarded as being of great salience by Professor James. In addition, while Dr Varghese acknowledged the possibility that the omission was a reflection of the interview process, given Professor James' concession of its significance, it is more likely that Mr Sergeant did report it as he did not see it as important at the time of the consultation with Dr Varghese. At the time of that consultation Dr Varghese's opinion was that Mr Sergeant's major depression was in remission and his overall psychosocial functioning was not affected in any significant way. Dr Varghese commented that Mr Sergeant was also keen to talk about his issues. [79] As I have previously noted, there is also no medical evidence that Mr Sergeant sought treatment from health professionals for his mental health after the meeting on 17 August 2006 except as part of the damages claim. That he did not immediately commence searching for alternative employment also suggests that the meeting did not have the significance for Mr Sergeant at the time which it has now gained.".

[13]

4 I consider that approach to the impact of the interaction of 17 August 2006, to have been reasonably open to the Commissioner. [15] One should not give excessive weight to the adjective "significant" at s. 32(1) of the Act; compare Qantas Airways Limited v Q-COMP and Blanch at 116 to 1192. However, the composite phrases is "significant contributing factor" and the notion of contribution itself suggests some linkage between the employment and the injury. On the Commissioner's analysis and findings of fact and given the competing cause, I can understand why it was that the Commissioner was not persuaded that Mr Sergeant's employment should be characterised as "a significant contributing factor". I order that the Appeal be dismissed. I reserve all questions as to costs.

[16]

Dated 25 November 2010. D.R. HALL, President. Appearances: Mr K. Fleming QC and with him Ms L. Willson, instructed by Dempseys Lawyers for the Appellant. Mr P. Rashleigh, directly instructed for the Respondent.

Released: 25 November 2010

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Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115

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