James Ricketson
58 Braidwood Road
Goulburn 2580
0488543555
Ms. Kerry Haddock
Workers Compensation Division
Personal Injury Commission 24th. October 2023
Dear Ms Haddock
I am preparing an article about the following matter:
re W5025/22 XXXXXXXX v Workers Compensation Nominal Insurer (icare)
You will appreciate that I have a duty, as a journalist, to make no factual errors in what I write. Hence this letter. If any of the facts I refer to here are erroneous, please point them out to me. My questions for you are rendered in blue text.
Mr. M's name will not appear in my article.
In relation to the 'Statement of Reasons' document you have prepared to justify Xxxxxxx Special Events having to pay $168,267 to iCare, dated 5th October 2023:
(1) The words 'bullying' and 'bullied' appear 44 times in it. 'Harassed' appears 7 times and 'hurt' 3 times. In every instance these accusatory words can be sourced back to allegations made by C M in relation to Ms. L’s treatment of him during the 28 days, cumulatively, that he was employed at XXXXXXXX.
Nowhere in your 'Statement of Reasons' is there any mention of the form Ms.L’s 'bullying' and 'harassment' took. You provide not one instance or example of 'bullying' or 'harassment'. Nor are the words 'bullying' or 'bullied' ever used in relation to Mr. M's behaviour towards Ms. L - not even when he threatened to kill her, as outlined in the 26th October 2019 Police Report:
(a) When an employee alleges that he or she has been bullied in the workplace, is s/he obliged to present evidence of their allegations - witnesses, text messages, emails, for instance - to iCare or the PIC? Or is the person who claims to have been bullied not required, in accordance with PIC guidelines, to provide evidence at all, mere allegations sufficing?
(2) The words 'bullying' and 'bullied' have been transmitted to the PIC via the reports of various doctors and psychiatrists written AFTER Mr. M finished work at XXXXXX. Not one of these medical practitioners, it seems, thought it necessary to ask Mr. M for examples or evidence of actions on Ms.L’s part that were later referred to as 'bullying' and 'harassment'. They have unquestioningly accepted Mr. M at his word, despite all of them knowing that Mr. M has suffered, for 30+ years, from a variety of mental health problems - all well documented in medical reports you and your fellow commissioners had at your disposal during your deliberations. It is my understanding that 'Bullying', in a legal sense, is:
Repeated behaviour that: is harmful; targets a certain person or group of people; and embarrasses, dominates to intimidates the person being bullied.'
Surely, due diligence should have induced these doctors to ask Mr. M for examples and/or evidence of 'bullying'? Perhaps they did not because Mr. M never indicated to them that he was being 'bullied'?
(b) Does the PIC accept, as statements of fact, reports of 'bullying' from doctors who have not sought evidence of the bullying allegations from their client?
(c) Is it a matter of concern to you that Mr. M' physician, Dr. Mc Kay, in regular contact with his client during his period of employ with XXXXXX, never once uses the words 'bullying' or bullied' in the reports he wrote about Mr. M' medical problems at the time?
(d) Given the importance placed on the allegation of 'bullying' in this matter, does it give you reason to pause given that the first time Dr. McKay uses these words is on 28th. October 2019, when he helps Mr. M fill out a WorkCover form. This date is six weeks after Mr. M' last day of work at Xxxxxxx, and two days after Mr. M threatened to kill Ms.L?
(3) Could you please clarify what the date was on which the alleged bullying by Ms. L rendered such psychological damage to Mr. M that he has been unable to work ever since?
In your 'Statement of Reasons', you write:
4. 'The date of injury was claimed to be approximately 26 July [2019], which was the date the worker became aware of his condition. The injury was “mental abuse”. The worker’s pre- existing depression/anxiety was exacerbated by “bullying”.
Mr.M started work at XXXXXX 15 days earlier, on 11th July.
(e) How is it possible that the mental abuse Mr. M allegedly experienced on 26th July, rendering him incapable of working this past 4 years, did not prevent him from working sporadically for Xxxxxxx until 13th. September - a period of around 10 weeks after his alleged 'injury'?
I draw your attention to the 'Surgery Consultation' recorded by ...
Dr. Brad McKay 29th July 2019
Mr M has told Mc. Kay this day that ...
3) Work (is) going OK so far, after asking for contract from his employer. Now getting paid some money after delay in payments for work he has completed for the business.
(f) Can Mr. M claim with any credibility that he suffered 'mental abuse' and 'bullying' on 26th July, and yet tell Dr. McKay 3 days later that work is 'going well'?
Either Mr. M was being parsimonious with the truth in what he told Dr. McKay on 29th. July, or he was playing fast and loose with the truth in claiming to have suffered 'mental abuse' and 'bullying' on 26th July.
There is a third alternative, which is consistent with medical reports which highlight Mr. M' tendency to drug-induced paranoia - namely that he did genuinely feel he was being bullied on 26th. July, and that discussing the possibility of a contract with Xxxxxxx induced him to genuinely feel, on 29th. July that work was 'going well'. If this be the case, it stands to reason, when no contract could be agreed upon between he and Ms. L, that Mr. M might feel, yet again, that he was being bullied. Given Mr. M' mood swings it is unsurprising that he felt warmly towards Ms. L when he wanted to borrow her car on 9th October:
CM: Morning babe I'm feeling a bit better today and have a few errands to do. Was wondering if I could borrow the car top make it easier than busses please?
A: Yes ok
CM: Thank you
I draw your attention to 129 and 130 of your 'Statement of Reasons'...
129 There are copies of numerous text messages between Ms L and the worker. I do not intend to refer to each one. None is dated.
130 There is reference to the worker borrowing Ms L’ss car, to which she agreed.
Yes, there are numerous text messaged. You are incorrect, however, in your assertion that they are not dated. They are dated, and the dates provide important context that you have overlooked in your 'Statement'...
- 21st September 2019
C: Hi babe can you hold onto the cash for me please and thank you.
- 26th September 2019
CM: Hi babe I have changed my appointment around so that we can calculate what is outstanding in wages and super to clear it up before I go...
A: Can we have breakfast? As early as you like.
CM: Yes Breakfast would be lovely I don't have any appointments so if you want to have a little sleep in that's all good. Can do 8 or 9 what works for you.
A: Good.
CM: Perfect did you want to pick me up on the way?
A: Yes.
- 5th October 2019
CM:: I just found a gorgeous rooftop bar at top of Oxford St we can meet there. I have been unwell all day too.
A: Where are we meeting?
CM: I'm still at home waiting to hear. The hotel where you rescued me that time.
- 6th October 2019
CM: Thank you again for all your support ...
A: We are in the same page with many things C and life has been so different for both of us we just need to get through this.
CM: Thank you that made me happy.
- 9th October 2019
CM: Morning babe I'm feeling a bit better today and have a few errands to do. Was wondering if I could borrow the car to make it easier than busses please?
A: Yes ok
CM: Thank you
(g) Do any of the above text exchanges, all written AFTER he had left XXXXXXX, suggest that Mr. M felt he had been or was being bullied or harassed by Ms. L?
(h) Why do you claim, in your 'Statement of Reasons' that these text messages are undated, when they clearly are?
(i) Why do you exclude them from your report when the tenor of the exchanges is at such odds with Mr. M' multiple subsequent allegations of 'bullying'?
(j) Do these texts not cast doubts in your mind regarding 'bullying' allegations - especially as no evidence has ever been produced in support of them?
It seems to me that you have conflated 'late payment of monies owed' with 'bullying' to justify your use of thew word. My own lay research suggests that late payment of monies owed does not constitute, in any legal sense, 'bullying'. If I am wrong here, please correct me.
Two days after his 'morning babe' text, having borrowed Ms. L’s car, and thanked her for it, the tone of Mr. M' text messages changes:
- 11th October 2019
C: I am sorry you are going through this now but this is NOT my concern as the funds are owed from months ago.
YOU choose to lie to me about not having the money however you were able to pay both cake decorating people that you owed thousands to ... YES my money again.
YOU need to go to the bank today as I want full payment no more excuses...
I suggest you have cash by 12
A: I cannot it's not possible I have meetings. Please stop bullying me. It's not fair. I have a life. I need a d eyesight that I need. Stop and think beyond yourself.
CM: No make it happen You have never thought of me first it's time for me to start.
A: C ... stop manipulating me. I am not your mother... Find some patience or nothing can happen as I am now vomiting from your bullying ... I show in many ways that I care about you.
CM: Money today or I am on the phone. To all govt. departments ... How true taking my money to run your business without asking or tanking me for keeping you afloat. Really trying to say I'm bullying you, tell your friend who is advising you on what to say that won't work if we go to court. Remember $25 is all it cost to lodge a small claim with my doctors and psychologists reports with you forcing me to work without ever getting a pay slip after numerous requests ... I can't pay my rent or buy food ... trust me if you don't want to pay back the money you owe I will fight for every cent. That will take it up to $7k Is that what you want. Make a decision you have an hour to respond. It will also be a great media story another celebrity ripping off people ... I want a thousand tonight.
(k) Why, in you 'Statement of Reasons' do you not address this sudden change in Mr. M' tone - especially since you know, from Mr. Hall's report, that Mr. M had, at this point not only been fully paid up, but overpaid?
Mr. M's behaviour here, flip-flopping between feeling bullied, feeling thankful raises the question, which is not addressed in your 'Statement of Reasons':
(l) Does the PIC believe that feeling something has occurred is evidence that it has, in fact occurred?
If a feeling is accepted as a fact, it follows that any employee who feels bullied can go down the same path Mr. M and iCare have gone down here and destroy an employer's business by simply feeling 'bullied'. Does this not open up a Pandora's Box of problems when it comes to Workers Compensation Claims?
Mr. M's mood swings need to considered in relation to medical reports you make little reference to in your 'Statement'. This one, for instance, written 4 weeks before Mr. M commenced work at XXXXXXX:
Progress Note, Caryl Barnes
RNSH Current Assessment
"Themes always being let down, rejected and betrayed ... good understanding of current circumstances - would like to engage in Acute crisis team support.
"It was evident on this discussion however that C was very paranoid and tangential. C also brought up themes appearing as grandiose delusions, such as being he official Queensland nomination of "Australian of the Year for his efforts in the Queensland floods ...
Alcohol and Other Drug Assessment
"States being exposed to crystal methamphetamine since coming back to Sydney last year... states a significant drinking history of 2 bottles of red a day.
Developmental History
"Both my parents were narcissists"
States never feeling emotional support
Reports being in a sexual relationship at 8 years of age with his Cousins Husband. Reports his parents were well aware. States his Cousin's Husband is in jail at present with cancer - Difficult to comprehend as presenting disorganised in thought stream but C accounted relationship being consensual."
Mood
Fluctuating mood, presents unstable, underlying irritable theme with persecutors.
Thought
Racing thought stream. Tangential, derailing conversation requiring frequent orientation back on track. Paranoid themes being expressed about localised police corruption, suspected delusions of electronic surveillance? Grandiose. Nominated Australian of the year.
This assessment of Mr. M's mental health was made a few weeks before he started work at XXXXXXXX on 11th July. The word 'paranoia' appears once in it. The words 'paranoid' and 'paranoia' appear several times in Mr. M's medical records. However, the only time the word 'paranoid' appears in your 'Statement of Reasons' is Mr. M F's attribution of paranoia to Ms. L. (see 378)
(m) Why do you pay so little attention in your 'Statement of Reasons' to the reports of doctors and psychiatrists who had significant ongoing dealings with Mr. M, but accept at face value his claims vis a vis 'bullying' - in the total absence of evidence?
In your 'Statement of Reasons', you write:
6. The date of injury was recorded as 5 August 2019. The injury was described as “workplace bullying, withholding wages, workplace stress”.
(n) Which date is it on which Mr. M suffered his 'injury'? 26th July or 5th August?
(o) Given that Mr. M did not work at XXXXXXXon 5th. August 2019, but was, by his own admission, setting up his new apartment that day, what form did the 'workplace bullying' and 'workplace stress' take? A telephone conversation with Ms. L? A text message? An email?
(p) Did you, at any time, seek from Mr. M evidence of what occurred on either 11th July or 5th. August that constituted the 'injury' that has rendered him incapable of working? There is nothing in your 'Statement of Reasons' to suggest that Mr. M was ever asked this question.
(q) How is it that Mr. M was rendered incapable of working as a result of Ms. L’ss 'bullying' on 11th July and/or 5th August and yet was capable of working for both Mr. Burton and Ms. F after he left XXXXXXX on 15th September?
I draw your attention, in your 'Statement of Reasons' to:
Evidence of the worker, C M
Statement dated 2 December 2019
254 Mr. M’ first statement was provided to Mr. Hall.
255 He was employed by XXXXXX on 11 July 2019 as a business development manager. He had not resigned or been terminated. He had not been working at the premises since approximately the end of October or the start of November 2019 ...
256 He had not been back to work because he was not being paid and was in fear of Ms L making up excuses as to why that was the case.
Mr. M is mistaken about when he finished work at Xxxxxxx. It was 15th. September 2019. His answer to Mr. Hall's question vis a vis leaving Xxxxxxx is not that he was being bullied or harassed but that he was not being paid. It is clear from Mr. Hall's report that Mr.M had not only been paid but had been overpaid.
(r) Is it feasible, in your view, that Mr. M simply forgot to mention to Mr Hall on 2nd December 2019 that he left Xxxxxxx because he was being bullied? Given the 44 uses of the words 'bullied' and 'bullying' that can be sourced back to Mr. M in your 'Statement of Reasons', is this not a significant omission on his part?
I have one last question, for the time being:
(s) Did Mr. M suggest to anyone at all that he was being bullied before Dr. Mc Kay used the word when filling out a WorkCover form two days after Mr. M threatened to kill Ms. L on 26th October?
Dr. Mc Kay himself did not use either 'bulling' or 'bullied' at any time during which he wrote reports regarding Mr. M whilst he was working at XXXXXX.
Please find attached my letter to Dr. Thomas Oldtree Clarke dated 20th October 2023
yours sincerely
James Ricketson
cc iCare, Dr. Brad Mc Kay, Dr. Thomas Oaktree Clark
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