Malcolm Hochen v Q-COMP

Date of decision: 22 September 2009, Acting IM Lavaring

Mr Gim del Villar of Counsel, instructed by Parker Simmonds Solicitors for the appellant

Mr Stephen Gray of Counsel, directly instructed by Q-COMP

Key words – Fitter - 51 – Injury Type: psychological – Appeal Outcome: appeal allowed - Significant sections considered: –

s32(1) an injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury

s32(5) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment

Head Note

Malcolm Hochen (Appellant) lodged an Application for Compensation with WorkCover Queensland (Insurer) on 27 February 2008. The Appellant alleged that he sustained a psychological injury caused by ‘verbal abuse’ at work. At the relevant time the Appellant was employed as a fitter by the Wide Bay Health District (Employer).

The Insurer rejected the Appellant’s claim on the basis that he did not suffer an “injury” within the meaning of section 32 of the Act.

Q-COMP subsequently confirmed the Insurer’s decision to reject the Appellant’s claim for compensation. Q-COMP determined that the exclusionary provisions of section 32(5) displaced the Appellant’s entitlement to compensation.

The Appellant lodged an appeal to the Industrial Magistrate Court. The Appellant essentially nominated five events which he alleged contributed to his injury.

The Appellant’s first stressor involved an altercation between the Appellant and his colleague Mr Deitrich. IM Lavaring stated that the Appellant could not rely on this incident as his evidence and that of his psychologist suggests that the incident did not cause his injury.

The Appellant further alleged that his supervisor did not support him in a meeting with Mr Dietrich on 17 August 2007. His Honour found that the supervisor had acted reasonably in the meeting and that it was reasonable management action taken in a reasonable way.

A meeting was held on 31 August 2007 with the Manager David Manzini, Mr Dietrich, the appellant and the Appellant’s supervisor Bruce Itzstein as a result of the dispute not being resolved in the meeting on 17 August 2007. The Appellant stated that he was surprised with an Incident report by Mr Dietrich which alleged intimidation and bullying tactics on his part. IM Lavaring found that the Appellant was unfairly put on the spot by the introduction of the Incident Report at the meeting, and should have been given sufficient time to properly respond to the specific allegations of intimidation and bullying made against him in the report. His Honour found that Mr Manzini’s actions were unreasonable management action in this respect.

It was also alleged by the Appellant that he was abused by a colleague in a staff meeting on 14 February 2008 at which the Appellant raised the issue of the dress code. This was the primary event which the Appellant nominated as the cause of his injury. IM Lavaring was not satisfied that this event on its own was sufficient to cause his injury, or that it was even a major contributing cause to his injury. Therefore, His Honour concluded that the Appellant could not rely on this stressor in his claim for compensation.

The Applicant’s final stressor related to a meeting held on 14 February 2008 with the Manger David Manzini, Peter Hyne, himself and Mark Herbert to discuss the incident earlier that day when he was allegedly abused by Mr Hyne. His Honour found that this event was the primary cause of his injury.

The Appellant contends that during the meeting he was blamed for raising the dress code issue at the staff meeting rather then directly with Mr Manzini himself. His Honour determined that it was unreasonable for Mr Manzini to suggest to the Appellant that a staff meeting was not the correct forum to raise the issue and this was not reasonable management action in the circumstances.

IM Lavaring concluded that the meeting of 14 February was the primary cause of the Appellant’s injury and the meeting involved unreasonable management action. His Honour therefore determined that the Appellant’s injury was not excluded from the definition of injury and allowed the appeal.

This decision has been appealed to the Queensland Industrial Court