Industrial Court of Queensland s1

3

[Extract from Queensland Government Industrial Gazette,

dated 20 March, 2009, Vol. 190, No. 11, pages 223-226]

INDUSTRIAL COURT OF QUEENSLAND

Workers' Compensation and Rehabilitation Act 2003 - s.561 - appeal against decision of industrial commission

Roger Michael Poed AND Q-COMP and Another (C/2008/31)(No. 2)

PRESIDENT HALL 6 March 2009

DECISION

By a letter dated 7 August 2007, Q-COMP informed Roger Michael Poed that, having reviewed an insurer's decision to reject his claim about a psychiatric injury, Q-COMP had decided to affirm the insurer's decision. Mr Poed unsuccessfully appealed to the Queensland Industrial Relations Commission. On 28 July 2008, Mr Poed filed an Appeal to this Court against the Commission's decision. Mr Poed indicated that he proposed to seek leave to call fresh evidence. The Application for Leave to call Fresh Evidence was listed for hearing as a preliminary matter. It was determined adversely to Mr Poed. The decision, which is now reported at 190 QGIG 80, should be read with this decision which deals with the Appeal lodged by Mr Poed on 28 July 2008. As amended, the grounds of that Appeal were:

"(a) Her Honour Deputy-President Swann [sic] failed to rule on an [sic] separate aspect of the case she agreed to hear prior to the onset of the Commission hearing W/C78/2007, 'Roger Poed vs Q-Comp & Tabcorp Holdings Ltd';

(b) Her Honour, despite hearing the evidence an offence had taken place, failed to apply s. 534 of the Workers' Compensation & Rehabilitation Act, 2003;

(c) Her Honour Failed to take into account the way in which I was treated by the Insurer, 'Tabcorp Holdings Ltd' & 'Q-Comp' during the Q-Comp report and subsequent Commission hearing which affected natural justice and the way in which I prepared and ran my case;

(d) Her Honour Deputy-President Swann [sic] wrongly misinterpreted the evidence by failing to take a global perspective on the case;

and consequentially

(e) Her Honour incorrectly interpreted and applied the exclusion of s. 321(5) of the Workers' Compensation & Rehabilitation Act 2003.".

Ground (a) of the Appeal relates to a concern by Mr Poed that the Review process was tainted by the circumstance that a Mr Pacitto had volunteered evidentiary statements and had then recanted. The appeal to the Queensland Industrial Relations Commission, which flows when the conduct of the Review process by Q-COMP does not resolve differences between a claimant and an insurer, is an appeal by way of hearing de novo, not an appeal by way of appraisal of the Review process. There was no justification for exploring the circumstances which had led to Mr Pacitto recanting in a separate proceeding preliminary to the appeal by way of a hearing de novo. The Deputy President was correct to reject Mr Poed's application for such a hearing. In any event, given the way in which ground (a) is articulated, the short answer is that the Deputy President had not agreed to conduct such a hearing.

As to ground (b), Mr Poed's assertion that the Deputy President did not apply s. 534 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) is entirely correct. Her Honour was wise to adopt that course. Nobody had been charged with an offence under s. 534 of the Act. If a complaint had been made and accepted by a Justice, the hearing would have been in the Industrial Magistrate's Court. The Queensland Industrial Relations Commission has no jurisdiction to entertain proceedings for an offence against s. 534 of the Act.

As to ground (c), Mr Poed is unable to point to anything in the transcript to support the assertion that there was a denial of natural justice. On the contrary, the transcript relating to the multiple directions hearings and the hearing of his appeal in the Commission shows that, as an unrepresented litigant, he was granted every indulgence. (The decision at 190 QGIG 80 refers to circumstances in which Mr Poed was granted the indulgence of cross-examining his own witness and seeking to contradict his evidence.) On the vexed matter of the inconsistency between Mr Pacitto's evidence and his earlier statements, the Deputy President gave Mr Poed advice about how to deal with the issue. The transcript shows that Mr Poed acted upon the advice. There was no denial of natural justice by Tabcorp Holdings Ltd in the course of the hearing of the Commission. On the contrary, the company indulged Mr Poed by arranging the attendance of all of his witnesses. When asked at first instance whether Q-COMP had been a party to the conduct tainting the Review, Mr Poed answered in the negative.

It is apparent from Mr Poed's written submissions that four matters are raised by ground (d).

The first matter raised is that the Deputy President did not take into account the evidence of Professor Whiteford, that earlier stressors whose immediate effect had resolved had (or could have been) resuscitated and reinvigorated by exposure to a subsequent stressor. With respect, Professor Whiteford did not give the evidence attributed to him. By his written opinion of 2 February 2007, which was admitted into evidence and marked as Exhibit 4, Professor Whiteford explained that Mr Poed suffered from an underlying condition in that:

"His psychological defence mechanisms are immature and he has a limited capacity to cope with psychosocial stressors.",

and,

"He also has personality traits of a (DSM IV) Cluster B type (which makes him more vulnerable to develop anxiety and depression during times of psychosocial stress).".

There is no suggestion in that evidence that once resolved, stressors reinvigorate. Professor Whiteford went on in that report to venture the opinion that, as a result of the stressors to which he had been subject, Mr Poed met the American Psychiatric Association's Diagnostic and Statistical Manual, Fourth Edition (DSM IV) Diagnostic Criteria for adjustment disorder with anxiety. In evidence-in-chief, Mr Whiteford elaborated upon that opinion asserting that the condition was one which usually resolved within six months of the onset of the stressor. Dr Whiteford went further and opined:

"That is correct. Although what happens in many individuals is that other stressors occur within that six months which continues the anxiety, though it is the new stressor to which the anxiety is attributed, and had that new stressor not arisen, then the anxiety attributable to the previous stressor would have resolved within the six month period.".

In cross-examination Mr Poed put to Professor Whiteford:

"So, the assault, the harassment, the silver room, all the other stressors that would have contributed in some way that could have manifested and remanifested to such an extent that they would have added on and accumulated to each other, is that correct, resulting in the adjustment disorder is that correct?".

And Professor Whiteford refused to give an affirmative answer to the question saying:

"Each stressor, put in its own right, produced a temporary adjustment disorder, even after the adjustment disorder resolved. It left Mr Poed with the perception that this workplace was one in which, as I said, against him in some way and one in which he was expecting increasingly to be treated unfairly, I can't say any more than that.".

The Deputy President, whose reasons make plain that Her Honour was fully aware that it was a case in which there were issues about actuality and perception, was right in failing to consider the evidence (wrongly) attributed to Professor Whiteford.

A related submission that Mr Poed's managers should have taken earlier stressors in determining how to deal with later incidents, is a submission which was not developed at first instance. Prudence might have been given in rebuttal. Mr Poed is bound by the conduct of his case at first instance.

The second matter at ground (d) appears to relate to an alleged invasion of Mr Poed's privacy. It is plain from the Deputy President's reasons for decision that Her Honour was aware that there was a serious issue about that matter and it is equally plain that Her Honour dealt with the matter in some detail. I quite accept Mr Poed's assertion that the Deputy President did not deal with the evidence on the point from Mr Pacitto. However, Mr Pacitto's evidence was both brief and unhelpful. In response to a question about an interaction with a Mr Emanuel, Mr Pacitto said:

"He did approach me in the corridor outside the muster area and - I really can't remember a lot of the statements I have made.".

And when asked by the Deputy President what he could remember of the particular incident, replied:

"Stephen walked up. He appeared to be a little bit annoyed and said - he said something about Roger and I forget what I said about - on that specified night that Mr Poed is relating to. I can't remember what was said your Honour.".

It may be that the Deputy President, who had the advantage of seeing and hearing the witness might have formed a view about whether Mr Pacitto was honest or evasive. However, on no view of the evidence actually given on the point about the invasion of privacy, might the Deputy President have legitimately made any finding or drawn any inference.

The third matter at ground (d) relates to Mr Poed's assertion that he was being harassed by his immediate superior, Mr Cooper. It was Mr Poed's contention that Mr Cooper had asserted that Mr Poed would not be promoted because of his association with a registered employee organisation. It is not suggested that the statement had caused Mr Poed to decompensate. It was put forward as part of the background against which Mr Poed's assertions of harassment were to be assessed. Put aside that the assertion was remote in time from Mr Poed's decompensation, the only evidence before the Deputy President was that Mr Cooper denied the assertion and that Mr Pacitto, upon whose evidence Mr Poed sought to rely to contradict Mr Cooper, was able to say only that the matter had "… happened such a long time ago Your Honour.", and assert absence of memory. Quite simply, there is no evidentiary foundation upon which the Deputy President might have concluded if the statement had been made. Further, given that Mr Cooper had subsequently participated in Mr Poed's promotion, the statement (if made) was but an equivocal distraction. Additionally, what was critical was Mr Poed's recollection of what had been said and his reaction to what was said. Mr Poed gave fulsome evidence on those matters and the Deputy President considered it.

The fourth matter raised at ground (d) was that Mr Cooper corroborated Mr Pacitto's evidence. The submission did not descend into particularity. I have read the transcript. I have not been able to locate material to support the submission.

As to ground (e) of the Appeal, it is not immediately apparent that any additional point is made. If the assertion is that the Deputy President failed to understand the authorities bearing upon the construction of s. 32(5) of the Act, it is sufficient to say that the analysis is entirely consistent with the decision of this Court in Q-COMP v Craig John Hohn (2008) 187 QGIG 389.

Mr Poed has requested that I have regard to his submissions at first instance by way of elaboration of his grounds of appeal. I have not derived any assistance from those submissions.

The Appeal is dismissed. As a matter of prudence, I reserve all questions as to costs.

Dated 6 March 2009.

Government Printer, Queensland

ÓThe State of Queensland 2009.