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  • Unreported Judgment

Workers' Compensation Regulator v Langerak

 

[2020] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Workers’ Compensation Regulator v Langerak [2020] ICQ 002

PARTIES:

WORKERS’ COMPENSATION REGULATOR

(appellant)

v

JADE LANGERAK

(respondent)

FILE NO:

C/2019/8

PROCEEDING:

Appeal

DELIVERED ON:

5 March 2020 

HEARING DATE:

17 June 2019

MEMBER:

Martin J, President

ORDER/S:

  1. Leave granted to amend grounds of appeal.
  2. The appeal is allowed.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – ARISING IN THE COURSE OF EMPLOYMENT – “A MAJOR OR SIGNIFICANT CONTRIBUTING FACTOR” – PSYCHIATRIC CONDITION – INADEQUATE REASONS – where the respondent was transferred to a new location and role in the Queensland Police Service following a marriage breakdown – where the respondent incurred a psychiatric injury that had arisen in the course of her employment – whether the respondent’s employment was the major significant factor to the personal injury – whether the Commission erred in law by failing to provide adequate reasons – whether the Commission erred in law in its application of s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003

Workers’ Compensation and Rehabilitation Act 2003, s 32

CASES:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited

Carlton v Blackwood [2017] ICQ 1, cited

CS Energy Limited v Q-COMP [2008] ICQ 2, cited

Davidson v Blackwood [2014] ICQ 8, cited

Davis v Blackwood [2014] ICQ 9, cited

Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332, cited

Q-COMP v Hochen [2010] ICQ 10, cited

Q-COMP v Rowe (2009) 191 QGIG 67, cited

Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 3, cited

Saville v Q-COMP & the State of Queensland (acting through the Department of Corrective Services) [2007] ICQ 28, cited

Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 11, cited

Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 10, cited

Yousif v Workers’ Compensation Regulator [2017] ICQ 4, cited

APPEARANCES:

CJ Clark instructed by the Workers’ Compensation Regulator for the appellant

DLK Atkinson QC instructed by Murphy Schmidt Solicitors for the respondent

  1. [1]
    In mid-2013, Ms Jade Langerak was employed as a general duties officer at Mt Isa Police Station. Her then-husband, also a police officer, was stationed at Camooweal. The respondent’s marriage broke down and, in August 2013, she left her marital home. She was subsequently transferred to a different location and a new role in the Queensland Police Service.
  2. [2]
    The principal question before the Commission was whether the respondent’s employment was the major significant contributing factor to a psychiatric injury she incurred in her new role. That question was posed against a backdrop of ongoing marital and financial difficulties that the respondent was experiencing in her personal life at the time of the injury.
  3. [3]
    The Commissioner found that the respondent’s employment was the major significant contributing factor to her injury and that the management action of the QPS was neither reasonable nor taken in a reasonable way in connection with her employment.

Factual background

  1. [4]
    Following the breakdown of her marriage, the respondent requested a transfer from Mt Isa to Rockhampton. She was instead transferred to the Townsville Police Communication Centre (TPCC). The respondent commenced her role at the TPCC on 3 January 2014.
  2. [5]
    On 17 March 2014, the respondent was diagnosed with severe major depression.
  3. [6]
    On 15 April 2014, the respondent was admitted to the Toowong Private Hospital identifying non-employment related issues as causative of her condition. She remained there until her discharge on 27 May 2014.
  4. [7]
    On 10 June 2014, the respondent’s treating psychiatrist reported that her treatment had gone well and that her mental state was settled, such that she was able to return to the workplace. He confirmed that in his opinion she was medically fit to return to general duties policing but to return her to the TPCC “would be deleterious to her health and welfare”.
  5. [8]
    The respondent initially opposed a return to the TPCC, but an agreement was eventually made between her and the QPS that she would return there. The Commissioner found that the agreement was made in circumstances where the respondent held genuine concerns that to not return to the TPCC was likely to jeopardise her continued employment with the QPS.
  6. [9]
    On 6 August 2014, the respondent returned to work at the TPCC.
  7. [10]
    On 9 October 2014, the respondent was advised that she was to be sent for an independent medical examination on 4 November 2014 because of her lack of progress and because she had become suicidal.
  8. [11]
    Dr Gundabawady was engaged by the QPS to examine the respondent and he gave reports to the QPS on 11 November 2014 (the First Report), 1 December 2014 (the Second Report) and 18 March 2015 (the Third Report).
  9. [12]
    The respondent continued to have personal issues with her husband while attending work up until 19 November 2014, when her general practitioner issued a medical certificate stating that she was unfit for work. The respondent did not return to the TPCC following her departure on 20 November 2014.

The case before the Commission

  1. [13]
    It was not in dispute that the respondent was a worker and had sustained an injury, namely an aggravation of her pre-existing major depressive disorder, for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (Act).
  2. [14]
    The respondent contended that she had sustained an injury caused by her return to work at the TPCC on 6 August 2014. She further contended that the Regulator had not established that that injury was caused by reasonable management action carried out in a reasonable way.
  3. [15]
    The primary submission of the Regulator was that it could not be shown that any employment factors reached the threshold of being the major significant contributing factor to the respondent’s psychiatric condition in November 2014. The Regulator submitted that the causes for that condition instead arose out of the long-standing, deeply distressing breakup of the respondent’s marriage.
  4. [16]
    The Regulator contended that if that any employment factors reached the threshold of a major significant contributing factor then the employer’s conduct could be fairly characterised as reasonable management action.

Grounds of appeal

  1. [17]
    This is an appeal of a decision concerning s 32 of the Act. At the relevant time, s 32 provided:

“(1)  An injury is personal injury arising out of, or in the course of, employment if—

  1. (i)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
  2. (ii)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

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

 (b) the worker’s expectation or perception of reasonable  management action being taken against the worker;

 (c) action by the Regulator or an insurer in connection with the worker’s application for compensation.

 Examples of actions that may be reasonable management actions taken in a reasonable way—

  • action taken to transfer, demote, discipline, redeploy, or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.
  1. [18]
    The grounds of appeal are as follows:
    1. the Commission erred in law in finding that the respondent’s employment was the major significant contributing factor to the personal injury that had arisen in the course of her employment; and
    2. the Commission erred in law in failing to provide adequate reasons in respect of the Regulator’s submission that in light of the applicant’s prevailing ongoing personal issues, that any workplace factors had failed to reach the threshold of being “a major significant contributing factor” to the onset of any psychiatric condition.
  2. [19]
    In addition to those grounds, the appellant seeks leave to add a third ground which appears in its amended application to appeal:

“That the Commission erred in law in its application of s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003.”

  1. [20]
    The respondent objects to leave being granted to amend the application to appeal. I will deal with that issue after first considering the other grounds of appeal.

Ground 1

  1. [21]
    In paragraph [262] of his reasons,[1] the Commissioner found that the personal injury sustained by the respondent arose out of or in the course of her employment with the QPS with employment being the major significant contributing factor to the injury.
  2. [22]
    The appellant draws attention to the following paragraphs of the decision which set out the Commissioner’s reasons for making that finding:

Was the employment the major significant contributing factor

[251] In the IME undertaken by Dr Gundabawady on 4 November 2014, having reviewed documents provided by the QPS and a history obtained from Langerak he acknowledged there had been a past history of depressive symptoms on the background of work stressors and a previous work incident. At the time of the IME (4 November 2014) he diagnosed according to DSM-IV-TR Multi-axial classification system that:

  • Langerak had a Major Depressive Disorder, recurrent, current episode severe in partial remission. Anxiety disorder not otherwise specified; and
  • Psychosocial and Environment Problems:

- difficulties in the workplace;

- poor social support;

- marriage breakdown; and

- financial difficulties.

[252] Dr Gundabawady further identified in the report that:

  • he agreed with Langerak that her current workplace had not been supportive and was not helping with her condition;
  • the difficulties at the TPCC had impacted on her depressive disorder;
  • the difficulties she had sustained in the workplace were due to her psychiatric and psychosocial stressors; and
  • remaining in her position at the TPCC would affect her recovery.

[253] On the information contained in the IME Report (dated 11 November 2014) which was contemporaneous in respect of her employment in November 2014, I am satisfied that Langerak’s employment was the major significant contributing factor to the personal injury that had arisen out of or in the course of her employment at the TPCC.

[254] For reasons disclosed previously in this decision, I prefer the findings of Dr Gundabawady’s First Report rather than the Supplementary Report that was provided in circumstances that were not conducive to producing an equitable outcome.”

  1. [23]
    The appellant says that the Commissioner’s finding that the respondent’s employment was the major significant contributing factor to her personal injury is so marked by a number of errors that the collective effect of those errors amounts to an error of law. The errors identified by the appellant are as follows:
    1. (b)
      A fair reading of the report does not of itself record the primacy to the workplace factors which the Commission adopted.
    2. (c)
      In this regard “difficulties in the workplace” are noted along with three other separate non-work factors as impacting upon the claimant’s psychiatric health.
    3. (d)
      The Commission had earlier noted in its findings at paragraph [46], that Dr Gundabawady would attract “less weight”.[2]
    4. (e)
      Whilst the Regulator cannot take issue with the Commission’s finding in that regard, the reality is that that Second Report, rather than being accorded less weight, has been accorded no weight whatsoever.
    5. (f)
      That Second Report having noted that the First Report was predicated solely upon the claimant’s self-report accords much more weight to non-work personal factors in the claimant’s psychiatric history.
    6. (g)
      That First Report of Dr Gundabawady noted that at the time of his examination, the claimant’s depressive disorder was “in partial remission”.
  2. [24]
    The appellant contends that in “solely focussing” upon Dr Gundabawady’s First Report, the Commission arrived at a conclusion which the contents of that report do not fairly support. It is said that the Commission’s failure to consider Dr Gundabawady’s oral evidence on that same issue further compounds the error. The appellant contends that in the absence of these two errors, especially the latter, the Commission would likely have arrived at a different conclusion as to whether employment was the major significant contributing factor.
  3. [25]
    The appellant’s submissions appear to be that the Commissioner:
    1. (a)
      failed to consider certain evidence, and
    1. (b)
      gave certain evidence more or less weight than was appropriate.

Did the Commissioner fail to consider certain evidence?

  1. [26]
    The Commissioner considered Dr Gundabawady’s evidence other than the First Report throughout his reasons.[3] Specifically, the Commissioner outlined Dr Gundabawady’s oral evidence at paragraphs [112] to [114] and [182]. The Commissioner notes, among other things, that:

“[112]  Under cross-examination the doctor evidenced that the primary object of 4 November 2014 was to decide whether Langerak was suitable to continue at the TPCC and the QPS generally.

[113]  In the period between 19 June 2014, November 2014 and March 2015 it was accepted by the witness that she had stressors outside of work some of which were documented in his first and third reports [Transcript p. 8-14]. In November 2014 and March 2015 those personal stressors were operative [Transcript p. 8-15]. Dr Gundabawady did not accept that clinically her workplace was the significant factor because all the stressors were not consistent or persistent [Transcript p. 8-16]. His role had not been to access what was the major significant contributing factor but to focus on her condition and whether she was fit to return to work [Transcript p. 8-16].

[114]  In re-examination he did not at the time of the first report consider Langerak needed time off. At the interview with Langerak on 17 March 2015 she had not disclosed any history about an incident in late November 2014 regarding self-harm relating to her relationship difficulties.

[182]  In the course of cross-examination Dr Gundabawady did not accept the position that Langerak’s “workplace was a significant factor” because ‘all the stressors were not consistent. They all keep changing. In re-examination when taken to the Bundaberg Hospital record of Langerak’s attempted suicide he agreed the history was completely different to what he had been told by her in a subsequent consultation on 17 March 2015 in that it was a “serious incident that could have changed his opinion”.”

  1. [27]
    The Commissioner also described the findings of the Second Report as follows:

“[110]  The second report of 12 December 2014 was provided following a request for clarification by the QPS on the independent assessment and report provided on 11 November 2014. In response to a series of questions, Dr Gundabawady advised that:

  • his first report was based upon her self-report and reports by treating psychiatrists (Dr Matthews and Dr Kahn);
  • after reviewing additional documentation provided by the QPS outlining support mechanisms he opined that she had been given all available support at work;
  • despite the adequate support demonstrated by the QPS Langerak continued to have significant stressors, no family/social support and financial difficulties; and
  • non work-related psychosocial factors were significantly contributing to her medical condition and decompensation.”
  1. [28]
    The Commissioner did not fail to consider Dr Gundabawady’s evidence.

Did the Commissioner err in how much weight he attributed to certain evidence?

  1. [29]
    Provided that there is some factual basis for a finding, there can be no error of law on the “no evidence” ground.[4] Here, the appellant appears to accept that there was evidence to support the Commissioner’s findings, but contends that the Commissioner erred in the weight he gave to the evidence supporting those findings.
  2. [30]
    The respondent says that in order to demonstrate an error of law, it is ordinarily insufficient for an appellant to argue that there was not “sufficient probative evidence” for a particular conclusion.
  3. [31]
    The respondent refers to Carlton v Blackwood,[5] where the following is said:

“… in this appeal, the appellant only argues that there was not ‘sufficient probative evidence’. If that is the case, then that will not be an error of law because the task for the appellant is to show an absence of evidence. Provided that there is some factual basis for the Commissioner’s finding, there can be no error of law on the ‘no evidence’ ground. If the Commissioner made a finding for which there was no evidence, that will be an appellable error if it is relevant to the case conducted before the Commissioner.”

  1. [32]
    Further, the misattribution of weight to certain evidence is an error of fact, not an error of law.[6]
  2. [33]
    Despite briefly adverting to seeking a grant of leave to appeal on ground of error of fact in its submissions, the appellant did not formally seek leave to do so nor submit any reason why such leave ought to be granted. Accordingly, a challenge to the weight attributed to Dr Gundabawady’s evidence is unavailable as a ground of appeal. 
  3. [34]
    In any event, there is nothing objectionable about the approach adopted by the Commissioner. The Commissioner had before him three reports of Dr Gundabawady, and Dr Gundabawady’s oral evidence. The Commissioner refers to each of these sources of evidence in the decision.
  4. [35]
    The role of the Commission when receiving expert evidence was outlined in Davidson v Blackwood:[7]

“In the present case, it was not for the expert witnesses called on behalf of either party to say whether or not the 2010 fall suffered during the appellant’s employment, was a “substantial contributing factor” to the injuries disclosed in the wake of the 2011 incident. As the Deputy President pointed out on a number of occasions, this was a matter for the tribunal of fact. It was for the tribunal of fact to determine, on the basis of the evidence put before the Commission, whether or not the appellant’s fall was a substantial contributing factor to his subsequent personal injury. It was for the expert witnesses to illuminate, to the extent of their knowledge and expertise, the cause (or causes) of the appellant’s back condition.”

  1. [36]
    That decision makes clear that it is for the Commission to consider an expert’s evidence and to determine how that evidence influences findings in respect of s 32 of the Act – it is not for an expert to decide.
  2. [37]
    The Commissioner provided clear reasons for his preference for the findings in Dr Gundabawady’s First Report as follows:

“[245] Dr Gundabawady provided a Supplementary Report (dated 1 December 2014) based upon a review of the additional information provided by the QPS without any further involvement of Langerak including not affording her the opportunity to respond to the additional material.

[246] It is evident that the Supplementary Report drastically altered the findings of the initial report by Dr Gundabawady and in my view the methodology relied upon by him in preparing the second of the reports was substantially unfair in the failure to apprise Langerak of the additional information and the opportunity to respond to such information. The Supplementary Report, in the circumstances, in my view contains findings that would attract less weight in my considerations than the First Report which had the appearance of being balanced in that Langerak and the QPS had equal opportunity to present material from their perspectives.”

  1. [38]
    Further, in paragraph [113] the Commissioner noted that three propositions were put to Dr Gundabawady which, he agreed, had he known them, would have been relevant to the preparation of the Second Report.
  2. [39]
    The Commissioner explained his preference for certain evidence. He then reached a conclusion that was open on the evidence. No error is demonstrated by proposing alternative conclusions that could have been reached on the evidence had the Commissioner attributed weight in a different way.
  3. [40]
    This ground fails.

Ground 2

  1. [41]
    This ground is closely related to the first. The appellant says that inadequate reasons were given for rejecting its primary submission.
  2. [42]
    Decisions of this court have clearly set out what is required of the Commission in order to satisfy the requirement that it provide adequate reasons in its decisions. In Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd,[8] the following is said:

“[15] The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected. The reasons must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal.

[16] It must be understood, though, that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”

  1. [43]
    The appellant says that if the Commission was minded to reject its primary submission, then reasons for that rejection should have appeared in the decision.
  2. [44]
    In paragraphs [248] and [249] of the decision, the Commissioner noted that:

“[248] The evidence indicates that Langerak was still having personal issues with her husband although still turning up for work up until 19 November 2014 when her general practitioner issued a medical certificate stating she was unfit for work.

[249] In the period following the issuing of the medical certificate, specifically 25 November 2014, Langerak was admitted to the Bundaberg Hospital due to issues relating to suspected self-harm. It would appear that the genesis for this incident was related to personal issues and in any event it was beyond the date of her decompensation in the workplace and the issuing of the medical certificate on 19 November 2014 that had rendered her unfit for duty.”

  1. [45]
    The appellant says that “it is simply not tenable to submit that these paragraphs in any way represent reasons for rejecting the Regulator’s primary submission.”
  2. [46]
    It must be borne in mind that the injury claimed for by the respondent was an aggravation of her pre-existing major depressive disorder caused by her return to work at the TPCC on 6 August 2014. The existence of that injury was accepted by the appellant. The precise date of the respondent’s decompensation is not clear from the Commissioner’s reasons or from the respondent’s statement of facts and contentions. The appellant referred in oral submissions to the respondent’s “ultimate” decompensation “on or about” 20 November 2014, although the Commissioner’s focus appeared to be on 4 November 2014, the date at which Dr Gundabawady first assessed and diagnosed the respondent with “major depressive disorder, recurrent, current episode severe, in partial remission” and “anxiety disorder not otherwise specified”.
  3. [47]
    In either event, it was appropriate for the Commissioner to focus his inquiry on the evidence contemporaneous with the period of aggravation. As observed by Hall P in CS Energy Limited v Q-COMP:[9]

“… A s. 32(3)(b) “injury” by way of “aggravation” is “an injury only to the extent of the effects of the aggravation”, s. 32(4). In a comparable legislative setting, it has been held by the Court of Appeal of New South Wales in Murray v Shillingsworth (2006) 68 NSWLR 451, that it follows that in working out whether the employment was “a substantial contributing factor” one has to focus upon the aggravation and not upon the underlying condition which should not be permitted to dilute the impact of the employment upon the aggravation. …”

  1. [48]
    The Commissioner referred to the Regulator’s contentions in respect of the cause of the respondent’s injury throughout the decision. Of note, the Commissioner observed that:

“[183] The Regulator contended that the close connection in time between the aggregation of personal issues for Langerak in October/November 2014 and her suicide attempt soon after cannot be ignored. It was also of question whether the failure to find alternate positions or the alleged failure to secure an IME had any bearing on the deterioration of her mental health.

[184] The allegation made by Langerak in regards to the lack of training on her return to work on 6 August 2014 had not been made out and it was implausible to suggest that this factor had any bearing upon her mental health problems in late November 2014 in view of the presence of the grievous personal factors at that time.”

  1. [49]
    Further, the Commissioner did not fail to set out or consider the medical evidence relating to the respondent’s injury, including the respondent’s history of non-employment stressors.
  2. [50]
    Based on the evidence that was before the Commission, most notably Dr Gundabawady’s First Report, the Commissioner made a finding in respect of the Regulator’s primary submission. He explained why he preferred the evidence of the First Report and he referred to, among other things, the fact that in that report Dr Gundabawady had identified “the difficulties at the TPCC [which] had impacted on her depressive disorder” and “remaining in her position at the TPCC would affect her recovery”. The Commissioner’s finding followed a clear chain of reasoning and was open for him to make.
  3. [51]
    Adequate reasons for rejecting the Regulator’s primary submission were given by the Commissioner. 
  4. [52]
    This ground fails.

Ground 3

  1. [53]
    In its original application to appeal the respondent did not include any ground concerning the Commissioner’s application of s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003.
  2. [54]
    The explanation given by the appellant came from the bar table. Counsel stated that in a busy professional period of his life he “didn’t advert to that ground as fully as what [he] should’ve.”
  3. [55]
    It is common ground that the respondent does not suffer any prejudice by the late amendment to the application to appeal. Nevertheless, the respondent contends that leave ought not to be granted to amend the application to appeal because:
    1. (a)
      the amendment is in a very bold, simple form and doesn’t set out the grounds of appeal;
    1. (b)
      one would expect that the Regulator would file an affidavit explaining why the notice didn’t include the ground at first instance;
    2. (c)
      the explanation provided by counsel in the appeal hearing is clearly unsatisfactory; and
    3. (d)
      a contention concerning s 32(5) of the Act was not raised by the Regulator at first instance, was not the subject of any focused cross-examination, and was not the subject of any submissions.
  4. [56]
    The last submission is without force as the appellant did, in its statement of facts and contentions and submissions before the Commission, contend that the respondent’s injury arose out of, or in the course of, management action which invoked s 32(5) of the Act.
  5. [57]
    In Saville v Q-COMP & the State of Queensland (acting through the Department of Corrective Services),[10] Hall P set out the considerations that affect the decision to grant leave to a party to amend its application to appeal:

“In exercising the discretion to grant leave to amend grounds of appeal, an important matter is the prospect of the Appeal succeeding; see Burns v. Grigg [1967] VR 871 at 872 per Barry J with whom Little and Gowans JJ agreed, and Mitchelson v Mitchelson (1979) 37 FLR 289 at 289 per Smithers J. Here, there is no likelihood of an appeal upon the grounds at proposed paragraphs 1(i), (ii) and (iv), 2 and 3 succeeding. The firm general rule is that a party will not be permitted to raise a point for the first time upon appeal where, had the point been raised in the court below, evidence could have been given which by any possibility could have prevented it from succeeding, compare Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. The truth is that if the proposed new grounds had been raised by the original application to appeal, the Appellant would not have been permitted to rely upon them.”

  1. [58]
    Accordingly, in determining whether to grant leave to amend the application to appeal I will consider the prospect of the appeal succeeding on the proposed new ground.
  2. [59]
    At [260] of his reasons the Commissioner held as follows:

“A return to work, is in any event, a return and in this instance it is difficult to make a case that the management action taken after that meeting to return Langerak to the TPCC was not in the circumstances reasonable management action taken in a reasonable way given Dr Kahn’s approval …”

  1. [60]
    At [261] the Commissioner then held that there were two “areas” of the employer’s management of the respondent’s return to the TPCC that were not reasonable management action taken in a reasonable way. They were:
    1. (a)
      the failure to provide an adequate level of training to the respondent on her return to the TPCC in August 2014 to ensure that she was fully prepared to undertake her designated role; and
    1. (b)
      the failure of the QPS through Hussey to act upon allegations of bullying by Child and Hoare.
  2. [61]
    The appellant says that the first finding was not open to the Commissioner because s 32(5) mandates that there must be some causal link between the injury and any management action. The appellant says that there was no evidence in that regard and for that reason the Commissioner erred.
  3. [62]
    The appellant says that the second finding involves error because the Commissioner ought to have undertaken the task of assigning weight to the various factors which go to the creation and maintenance of a psychiatric disorder and, having done so, would inevitably have attributed the lack of training “substantially less weight”.
  4. [63]
    The respondent says that the appellant needed to show that it both took reasonable management action and that it took it in a reasonable way. They contend that the Commissioner found that the decision to direct the appellant to the TPCC was reasonable management action, but the action was not carried out in a reasonable way.
  5. [64]
    The difficulty with that submission is that it is contrary to what is said by the Commissioner at paragraph [262] that:

“… the management action of the QPS was neither reasonable or taken in a reasonable way in connection with her employment.” (emphasis added)

  1. [65]
    The submission also fails to sit well with the Commissioner’s description of the areas as “unreasonable management action taken in an unreasonable way” rather than simply cases where the reasonable management action was conducted in an unreasonable way.
  2. [66]
    The Commissioner appeared to treat the areas of unreasonable management action he identified as rendering unreasonable the otherwise reasonable management action of returning the respondent to the TPCC. It is a more holistic approach than that contended for by the respondent.

Failure to act on allegations of bullying

  1. [67]
    The principal difficulty faced by the respondent is that its statement of facts and contentions did not identify the failure of the QPS to act on allegations of bullying as a stressor or employment factor contributing to her injury. Nor was it identified as such in her submissions.
  2. [68]
    In Q-COMP v Hochen[11] it was held by Hall P that:

“[15] … Section 32(5)(a) of the Act requires the insurer, Q-COMP and any appellate tribunal to enquire whether the psychological injury arose out of or in the course of reasonable management action taken in a reasonable way. The presence of unreasonable management action with a sufficient causal connection to the injury may require that a negative answer be given to the question posed by s. 32(5)(a).” (emphasis added)

  1. [69]
    The meaning of the phrase “unreasonable management action with a sufficient causal connection to the injury” must be determined with reference to s 32(1) of the Act. In Simon Blackwood (Workers’ Compensation Regulator) v Chapman[12] it was held that:

“[22] As was said in Mana, s 32(5) need only be considered if s 32(1)(b) has been satisfied. In other words, the Commission must be satisfied that the psychiatric or psychological disorder has arisen out of, or in the course of, employment, and that the employment is the major significant contributing factor to the injury. In reaching a conclusion on that point, the Commission will take into account the stressors nominated by the applicant. If, during that process, the Commission decides that one or more of the stressors either cannot be established as a matter of fact or, if established, that there is no causal link, then such a stressor cannot be taken into account when considering s 32(5). It is only those stressors which are held to have had the necessary causal link which can, as a matter of logic, be the subject of consideration as to whether or not they fall within s 32(5). It is, of course, open to the Regulator to nominate some other action or event which is said to have caused the disorder and comes within s 32(5).”

  1. [70]
    The respondent says that the issue of bullying was not a standalone ground but, instead, there was a link between a lack of training and the respondent’s problems in the workplace with the two particular sergeants who bullied and ostracised her. Before the Commission, the respondent contended that her posting to the TPCC for return to work duties was not carried out in a reasonable way in circumstances where, among other things, her training was inadequate and the TPCC “was a challenging environment where the sergeants spoke very directly to staff”.
  2. [71]
    In reply, the appellant submits that while there may have been evidence of bullying in the workplace, the particular stressor that the Commissioner found was that there was a failure by management to act upon the respondent’s allegations of bullying, and that was never a feature of her case.
  3. [72]
    The appellant’s submission is compelling. It was not appropriate for the Commissioner to go beyond the statement of facts and contentions by identifying further stressors or causes of the appellant’s injury that did not form part of the respondent’s case.
  4. [73]
    In Yousif v Workers’ Compensation Regulator[13] it was held that:

“[15] It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.”

  1. [74]
    While that passage concerns the conduct of parties it is nevertheless pertinent to the consideration by the Commission of evidence and issues which lie outside the scope of a claimant’s case. Here, the Commissioner’s approach failed to alert the appellant to a matter which was critical to the outcome of the respondent’s claim and deprived the appellant of the opportunity to address that matter at all stages of the proceedings. 
  2. [75]
    The Commissioner considered a stressor which was not characterised by the respondent as a cause of her injury and treated it as a reason for finding that the management action taken by the employer was neither reasonable nor taken in a reasonable way. The Commissioner erred in doing so.

Inadequate training

  1. [76]
    The respondent submits that the issue of bullying is a red herring because of the finding that it was unreasonable to return the respondent to the TPCC without proper training. 
  2. [77]
    That submission concerns a question which has been the subject of significant consideration in this court – how does s 32(5) operate when one or more, but not all, of the stressors are found to be reasonable management action taken in a reasonable way?
  3. [78]
    The question was considered in Q-COMP v Rowe,[14] where Hall P observed that:

“It is the effect of the decision in Q-COMP v Hohn, ibid, that a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way. However, “may” cannot be read as “must”: nor may the passage be read as asserting that an Appeal Body is at liberty to allow a claimant to succeed where at least one stressor does not “… arise or occur in the course of reasonable management action taken in a reasonable way”. In all such cases, the Appeal Tribunal will be required to embark upon the enquiry whether the psychological/psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way.” (emphasis added)

  1. [79]
    It is not axiomatic that, because the Commissioner found that the respondent’s training was inadequate, her injury did not arise out of or in the course of reasonable management action taken in a reasonable way.
  2. [80]
    Davis v Blackwood[15] stands for the proposition that the question of whether s 32(5) is enlivened turns on the weight attributed to each factor under consideration:

“[49] The other complaints made by the appellant about the Commissioner’s reasoning concerned his findings with respect to the requirement for the appellant to sit with indigenous patients and to mourn with families after the passing of patients at the hospital. The Commissioner accepted that over the course of his employment Mr Davis found aspects of his work stressful. He also found that Mr Davis discussed those aspects with Ms Forster from time to time and that she did, on some occasions, offer means by which he might cope with the stress.

[50] This case raises the difficulty which exists when a psychiatric disorder is brought about by matters:

(a) covered by s 32(5), and

(b) other matters which are employment related, and

(c) other matters which are non-employment related.

[51] I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury”. In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.”

  1. [81]
    Rowe and Davis were both considered in Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey.[16] The following observations were made in that decision in respect of the interaction between ss 32(1) and 32(5):

“[37] Section 32 (1) is concerned with consideration of an injury which arises out of, or in the course of, employment. In other words, it covers the whole gamut of the employment relationship. It does not confine its operation to particular aspects of the employment, rather, it emphasises that all of the employment is to be considered because an “injury” will only come within the definition “if the employment is a significant contributing factor to the injury”.

[38] A distinction can then be drawn with the provisions of s 32(5). Putting to one side s 32(5)(c), that section is concerned with “reasonable management action” which is actually taken or a worker’s expectation or perception of such action. In other words, it is concerned only with a “slice” of the employment.

[40] The question which arises in this case, and which has been set out above, could, if answered in the way proposed by the appellant, lead to circumstances where a worker who nominated two stressors would be denied compensation if one of those stressors was reasonable management action etc., even if the unchallenged expert evidence was that its contribution to the disorder was minimal. Similarly, the appellant’s answer would also deny a worker compensation if a disorder was the result of ten stressors, each of equal importance, but where one fell within s 32(5).”

  1. [82]
    After setting out the history of cases concerning s 32(5) the following conclusion was then reached:

“[55] Where the only cause of a personal injury is reasonable management action etc. then s 32(5) will work to exclude it from the definition of “injury” in s 32(1). The difficulty, as has become painfully obvious over the years, is where a psychiatric or psychological disorder can be seen to have arisen from a mixture of actions including reasonable management action. Experience in this jurisdiction shows that it is not uncommon for psychiatric disorders to be the result of a number of factors.

[57] The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied. In the cases decided in this Court any attempt to provide some type of formula or application of dominant cause has been rejected. Section 32 must be applied in the light of the evidence accepted by the Commission. If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms the conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the worker’s favour must follow.”

  1. [83]
    Implicit in the Commissioner’s reasons is an assessment that the failure to provide adequate training was a significant consideration in respect of s 32(5) that weighed against the reasonable management action taken. The Commissioner observed as follows:

“… the failure to provide an adequate level of training to Langerak on her return to the TPCC in August 2014 to ensure that she was fully prepared to undertake her designated role was a blight on the management action of the QPS particularly as there was agreement reached at the Case Management meeting of 4 August 2014, according to Dr Kahn’s notes of the meeting, that stated an ‘endorsed return to training as a good part of her treatment plan’. Langerak complained of inadequate training being provided and relied on the lack of such training as the reason she had failed to reach the acceptable standard in respect of 12 of 16 sample calls requiring her to meet with Hussey and Doyle in a performance review type meeting”[17]

  1. [84]
    But the Commissioner’s reasons do not, on their face, indicate that inadequate training was alone sufficient to outweigh the reasonable management action that was taken. The Commissioner held:

“[261] There are in my view however two areas of the QPS management of Langerak’s return to the TPCC on 6 August 2014 and onwards that was not reasonable management action taken in a reasonable way by the QPS in connection with Langerak’s employment, that would enliven the operation of s 32(5) of the Act to not exclude her psychiatric/psychological disorder from being compensable.”

  1. [85]
    It is unclear whether the Commissioner found that the two areas together meant that the respondent’s injury was compensable or whether each, in isolation, was sufficient.
  2. [86]
    The ultimate question under s 32(5)(a) is whether the injury, not any one stressor, arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment. The determination made in respect of s 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole of the evidence.
  3. [87]
    Without a clearer articulation of the relative weight given to each factor I am unprepared to accept the submission that, if the failure to act in respect of allegations of bullying was entirely excluded from consideration, then the Commissioner would nevertheless have still found in favour of the respondent.

Should leave be granted?

  1. [88]
    Considering the foregoing, if leave is granted to pursue this ground of appeal it would establish that the Commissioner’s reasons involve an error of law. When balanced with the other factors weighing for and against the granting of leave that are canvassed above, including the absence of prejudice and the explanation provided by the appellant, I consider that it is appropriate to grant leave to the appellant to amend its grounds of appeal.
  2. [89]
    It follows that the appellant succeeds on this ground of appeal.

Conclusion

  1. [90]
    The appeal is allowed. I will hear from the parties about what further orders should be made.

Footnotes

[1] Langerak v Workers’ Compensation Regulator [2019] QIRC 35.

[2] This appears to be a reference to paragraph [246], wherein the Commissioner stated that the Second Report contained findings that would attract less weight in his considerations than the First Report. Paragraph [46] concerns a Facebook post made by the respondent.

[3] See, eg, Langerak v Workers’ Compensation Regulator [2019] QIRC 35 [106]-[114], [132], [180]-[182] and [241]-[247].

[4] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

[5] [2017] ICQ 1 at [28].

[6] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332 at [25], [35].

[7] [2014] ICQ 8 at [17].

[8] [2015] ICQ 3.

[9] [2008] ICQ 2; (2008) 188 QGIG 6.

[10] [2007] ICQ 28.

[11] [2010] ICQ 10.

[12] [2016] ICQ 11.

[13] [2017] ICQ 4.

[14] (2009) 191 QGIG 67.

[15] [2014] ICQ 9.

[16] [2016] ICQ 10.

[17] Langerak v Workers’ Compensation Regulator [2019] QIRC 35 at [261].

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v Langerak

  • Shortened Case Name:

    Workers' Compensation Regulator v Langerak

  • MNC:

    [2020] ICQ 2

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    05 Mar 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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