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  • Unreported Judgment

Bridges Health & Community Care Ltd v Workers' Compensation Regulator

 

[2020] QIRC 9

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bridges Health & Community Care Ltd v Workers' Compensation Regulator [2020] QIRC 009

PARTIES: 

Bridges Health & Community Care Ltd (Appellant)

v

Workers' Compensation Regulator

(Respondent)

&

Angela Walters

(Interested Party)

CASE NO:

WC/2019/61

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

January 22 2020

HEARING DATE:

On the papers

MEMBER:

O'Connor VP

ORDERS:

  1. Application granted.
  1. Full orders as per last page of decision.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL – Application by Appellant for order that the claimant worker submit for medical examination - whether Commission should exercise its discretion to make an order pursuant to s 556 Workers' Compensation and Rehabilitation Act 2003

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2016 (Qld) s 556

Atlas Marine International Pty Ltd v Q-COMP (WC/2013/104)

Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010 (C/2015/30)

Reasons for Decision

  1. [1]
    Bridges Health & Community Care Ltd is a community based not-for-profit provider of mental health and drug and alcohol services in Hervey Bay. At the relevant time, Ms Angela Walters was employed as an Administrative Support Officer. 
  1. [2]
    On 31 July 2018, Ms Walters lodged an application for compensation in respect of a work-related psychological injury. On 2 October 2018, WorkCover rejected Ms Walters' application for compensation on the basis that the evidence did not support the allegation of workplace bullying. It was further found that s32(5) of the Workers' Compensation and Rehabilitation Act 2003 operated to exclude Ms Bridges' psychological condition from the definition of injury in s32(1).
  1. [3]
    Ms Walters filed an application for review of the WorkCover decision to the Regulator on 20 December 2018. The Regulator by decision dated 13 March 2019 set aside the decision of WorkCover finding that Ms Walters' psychological injury was compensable. It is against this decision that the employer seeks to appeal.
  1. [4]
    The Appellant has made an interlocutory application for an order under s556 of the WCR Act seeking to have Ms Walters submit to a medical assessment by Dr Elnike Brand a Consultant Psychiatrist.  
  1. [5]
    All parties, including Ms Walters, were given leave to provide written submissions and agreed that the matter be determined on the papers. The Regulator has advised that it neither consents to or opposes the application. Ms Walters advised the Industrial Registry in an email dated 10 January 2020 that "I do not consent to the orders requested by the appellant, but I will submit to an independent medical assessment if the Commission considers it appropriate and orders that I attend."

Background

  1. [6]
    In short, the Regulator found that Ms Walters suffered an injury described as "acute stress reaction" and "anxiety" said to have arisen following two discrete workplace events on 7 and 12 June 2018. On those two dates, Ms Walters was said to have been confronted by Mr Hamish Watt, her direct supervisor. On those occasions, it is contended that Mr Watt used abusive language, was shouting, agitated and aggressive. As a consequence of the encounters on 7 and 12 June, Ms Walters was upset, felt shaken and was in a state of shock. She said that Mr Watt's behaviour "scared her".
  1. [7]
    On 14 June 2018, Ms Walters consulted Ms Heather Downes, a Psychologist. The consultation was in respect of what was described as "verbal and emotional abuse by supervisor 7/6/18 and 12/6/18."
  1. [8]
    On 18 June 2018, Ms Walters consulted Dr Medhi Noori Koopie, a general practitioner. The clinical notes relevantly record the reason for the consultation as: "Her boss shouteing (sic) and swearing at the office/her last week. Two incidents." The reason for the visit was described as: "Acute stress reaction." Ms Walters further consulted Dr Koopie on 27 July 2018. The clinical records for that consultation record: "Anxiety". "She has seen psychologist and her psychologist thinks she has PTSD." However, in the Capacity Certificate dated 27 June 2018, Dr Koopie identifies the diagnosis as "anxiety/PTSD".

The Application

  1. [9]
    So far as is relevant, the form of the orders sought by the Appellant are as follows:
  1. Within 21 days of the date of the order the claimant attend at the surgery of Dr Elnike Brand of 7 Cromdale Ct, Hervey Bay in the State of Queensland and be personally examined by Dr Brand for the purpose of Dr Brand undertaking an assessment and preparing a medical report in respect of:
    1. whether the claimant was properly diagnosed as suffering Post Traumatic Stress Disorder; and
    2. whether the claimant was properly diagnosed as suffering 'an acute stress reaction' or 'anxiety stress reaction'; and
    3. if the answer is yes, in respect of either paragraph a or b, and having regard to the medical history of the claimant, including the Mental Health Care Plan 7.04.2017 and the other records listed below:
      1.  whether the injury is likely to pre-date the workplace events on 7 and 12 June 2018 (i.e. is it a pre-existing injury);
      2.  what are the significant contributing factors to that psychological injury;
      3.  whether the workplace events on 7 & 8 June 2018 constituted the major significant contributing factor to that psychological injury;
      4.  alternatively, whether that psychological injury is an aggravation of a pre-existing injury, and if so, whether the workplace events on 7 and 12 June 2018 constituted the major significant contributing factor to that aggravation;
      5.  what is the current prognosis of the injury.

…..

The Legislation

  1. [10]
    Section 556 of the WCR Act provides as follows:

556 Additional medical evidence

(1) This section applies if -

(a) the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or

(b) the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.

(2) The appeal body may, at any time before or after the start of the hearing, order the claimant or       worker to submit to a personal examination by 1 or more specified registered person.

The Appellant's submissions

  1. [11]
    The basis for the application is that the Appellant does not accept that the claimant suffered a psychological injury during the course of her employment. The Appellant's position is that any anxiety suffered by the claimant was a pre-existing condition.
  1. [12]
    It is submitted that Ms Walters has not been independently medically assessed nor is there a psychological report. The Respondent relies upon, amongst other things, the letter from Ms Walters' psychologist which states a diagnosis of PTSD but provides no supporting assessment or analysis.
  1. [13]
    Further, the Appellant takes issue with the diagnoses in the work capacity certificate provided by Dr Koopai of 27 July 2018 and Dr Singh of 30 March 2019 on the basis that the claimant's full medical history was not disclosed.
  1. [14]
    The gravamen of the Appellant's submission is that in circumstances where it is disputed that Ms Walters even suffered an injury and causation is a live issue, the Appellant's ability to discharge its onus of proof would be unfairly inhibited without an independent medical assessment being undertaken.

Ms Walters' submissions

  1. [15]
    Ms Walters submissions are short in compass. She makes the following two submissions:
  1. I have been diagnosed with anxiety/PTSD by Dr Koopai and with post-traumatic stress disorder by psychologist, Heather Downes. A further examination as proposed by the appellant is repetitious and unnecessary.
  1. Heather Downes is well placed to provide a diagnosis because she has been appraised of my relevant history of mental illness and I have been consulting wither her since 16 February 2017.

Consideration

  1. [16]
    Section 556 of the WCR Act gives the Commission the discretion[1] to order additional medical evidence if "the cause, nature, or extent of the injury or incapacity arising from the injury is relevant to the appeal". In this appeal, the cause and the nature of Ms Walters' injury are in dispute.
  1. [17]
    It is clear from the Statement of Facts and Contentions filed by the Appellant that it will be argued at the hearing of the appeal before the Commission that Ms Walters was suffering from a number of pre-existing psychological issues unrelated to her work and, as consequence, her employment was not causative of the injury. It is the Appellant which bears the onus to produce sufficient medical evidence to support those contentions.
  1. [18]
    Through non-party disclosure, the medical records of Ms Walters have been obtained. Dr Koopai's clinical notes record on 27 July 2018 that Ms Walters had a "history of depression in the past but she took escitalopram for 2 weeks only/was 3 years ago she was fully recovered", the clinical records obtained from the Murphy Street Medical Centre reveal a long history of anxiety-related mental illness dating back to a diagnosis of depression in December 2009. The clinical records reveal, for example, that in April 2017, Ms Walters was placed on a mental health care plan. The plan under the hand of Dr Richard James notes "suicidal ideation", a history of witnessing domestic violence and having previously received specialist mental health care. Ms Walters was referred to the psychologist, Ms Downes for further care.
  1. [19]
    Dr Koopie was either unaware of the previous medical history of Ms Walters or he did not consider the clinical records from the Murphy Street Medical Centre, which the Appellant believes, are forensically important.
  1. [20]
    In Atlas Marine International Pty Ltd v Q-COMP the Commission was called on to determine whether grant an order under s556 of the WCR Act. It was held that:

In making my decision that this is an appropriate occasion where the worker, Mr Kent, should be directed to attend a medical assessment I also noted the fact that Dr Ljubisavljevic is (now) the only medical practitioner who is not treating Mr Kent. While the Employer might have (and might still) seek his re-consideration of his earlier reports in light of any new and additional material which the Employer might draw to his attention, it is also the case that there is some merit in having a fresh clinical psychiatrist, armed with the potential matters in dispute, to undertake an assessment of the type proposed. This is because, at the end of the day, such an assessment is likely to lead to less disputation between the parties to the foreshadowed appeal proceedings.[2]

  1. [21]
    The order for an independent medical examination is sought because in the process of review associated with Ms Walters' compensation claim, a report about causation has never been obtained from a psychiatrist who had possession of and considered the relevant facts and circumstances. That is, a medico legal report has not been obtained from a consultant psychiatrist who had elicited a relevant history from Ms Walters, undertaken an examination and who has reviewed the clinical records.
  1. [22]
    On the issues giving rise to a consideration of the application of s32(5), it is important to know whether the decompensation occurred prior to, contemporaneously with, or subsequent to the activities in the workplace asserted by Appellant to be reasonable management action reasonably taken.
  1. [23]
    In my view, the Commission should have the benefit of a special psychiatric report. In Simon Blackwood (Workers' Compensation Regulator) v Mahaffey, Martin J spoke of the minimum that is required when obtaining an expert medical report. In that case, Dr Chau provided a psychiatric report which was not as clear as it might have been. Martin J said:

  Such a report should, at a minimum, discuss, and offer an opinion on:

 (a)  the subject’s psychiatric condition,

 (b)  what the subject told the psychiatrist about the employment, and

  1. (c)
    the causal relationship (if any) between the employment and the condition.

In the process of doing that, the psychiatrist should specifically consider the stressors nominated by the subject and express a view, on the assumption that they will be established, as to any causal relationship.[3]

  1. [24]
    It is incumbent on the Appellant to establish, on the requisite standard, that Ms Walters application for compensation is not one for acceptance. In order to discharge that onus, the Appellant needs the ability to obtain expert evidence to establish that Ms Walters injury did not arise out of or in the course of her employment, or that her employment was not the significant contributing factor to her psychological or psychiatric injury.
  1. [25]
    I accept that the threshold requirements under s556(1) of the Act have been met and that the discretion to order additional medical evidence ought to be exercised. The condition of Ms Walters is relevant to the appeal. Equally, the cause, nature and extent of the injury, including whether the injury was sustained is in dispute. Accordingly, the application is granted and I make the following orders:

Orders

  1. Within 21 days of the date of the order the claimant attend at the surgery of Dr Elnike Brand of 7 Cromdale Ct, Hervey Bay in the State of Queensland and be personally examined by Dr Brand for the purpose of Dr Brand undertaking an assessment and preparing a medical report in respect of:
  1. whether the claimant was properly diagnosed as suffering Post Traumatic Stress Disorder; and
  2. whether the claimant was properly diagnosed as suffering 'an acute stress reaction' or 'anxiety stress reaction'; and
  3. if the answer is yes, in respect of either paragraph a or b, and having regard to the medical history of the claimant, including the Mental Health Care Plan 7.04.2017 and the other records listed below:
    1. whether the injury is likely to pre-date the workplace events on 7 and 12 June 2018 (i.e. is it a pre-existing injury);
    2. what are the significant contributing factors to that psychological injury;
    3. whether the workplace events on 7 & 8 June 2018 constituted the major significant contributing factor to that psychological injury;
    4. alternatively, whether that psychological injury is an aggravation of a pre-existing injury, and if so, whether the workplace events on 7 and 12 June 2018 constituted the major significant contributing factor to that aggravation;
    5. what is the current prognosis of the injury
  1. For the purpose of Dr Brand undertaking an examination and providing a report in accordance with paragraph 1 of these orders, the Appellant provide to Dr Brand copies of the Claimant's medical records including:
  1. Work Capacity Certificates 30.03.2019 and 27.07.2018
  2. WorkCover medical opinion form completed by Dr Koopai dated 8.08.2018
  3. The Medical Centre @ Hervey Bay Patient Health Summary
  4. Shalom Doctors Patient Health Summary
  5. Murphy Street Medical Centre Patient Health Summary
  6. Mental Health Care Plan 7.04.2017
  7. H Downes handwritten patient records
  8. H Downes letter to Dr R James 21.12.2017
  9. H Downes letter to Dr R James 31.12.2018
  10. H Downes letter to the Appellant undated
  1. The Appellant to pay the reasonable costs of the examination of the claimant by Dr Brand, the report, and the reasonable travel costs to and from the medical examination incurred by the claimant.
  1. Within 7 days of receiving Dr Brand's report, the Appellant will forward a copy to the Respondent.
  1. The costs of the application be the Appellant's costs in the cause.

Footnotes

[1] Darius Adair Carter AND Q-COMP (2007) 185 QGIG 245, 246.

[2] Atlas Marine International Pty Ltd v Q-COMP (WC/2013/104) [12].

[3] [2016] ICQ 010 (C/2015/30) [10]-[11]. 

Close

Editorial Notes

  • Published Case Name:

    Bridges Health & Community Care Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    Bridges Health & Community Care Ltd v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 9

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    22 Jan 2020

Appeal Status

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