Simon Blackwood (Workers' Compensation Regulator) v Yates
[2015] QIRC 174
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- Unreported Judgment
- Simon Blackwood (Workers' Compensation Regulator) v Yates[2015] QIRC 174
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Simon Blackwood (Workers' Compensation Regulator) v Yates[2015] QIRC 174
Simon Blackwood (Workers' Compensation Regulator) v Yates[2015] QIRC 174
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Simon Blackwood (Workers' Compensation Regulator) v Yates [2015] QIRC 174 |
PARTIES: | Simon Blackwood (Workers' Compensation Regulator) (Applicant) v Yates, Michelle (Respondent) |
CASE NO: | WC/2015/244 |
PROCEEDING: | Application for Orders |
DELIVERED ON: | 8 October 2015 |
HEARING DATES: | 6 October 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Thompson |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION ‑ APPLICATION FOR ORDERS ‑ Standard of proof - Witness evidence - Prescribed time period to lodge a claim - Diagnosis - Statement of Stressors - Three stressors removed from Statement of Stressors - Costs reserved. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 131 Blackwood v Toward [2015] ICQ 008 Groos v WorkCover Queensland [2000] 165 QGIG 106 |
APPEARANCES: | Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Applicant. Ms S. Anderson of Counsel, instructed by Shine Lawyers for the Respondent. |
Decision
- [1]A Notice of Appeal was lodged with the Industrial Registrar on 2 April 2015 by Michelle Yates (Yates) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 6 March 2015 which upheld a decision of WorkCover Queensland (WorkCover) to reject a claim by Yates for workers' compensation for a psychological injury.
- [2]On 4 September 2015 the Regulator lodged an Application for Orders in the following terms:
"1. An order that the appeal (WC/2015/83) filed by the appellant, Michelle Yates, be scheduled for a preliminary hearing before the Commission to determine whether the appellant's application for compensation, lodged on 24 March 2014, was out of time and not valid or enforceable pursuant to s 131(1) of the Workers' Compensation and Rehabilitation Act 2003, insofar as to any of the appellant's stated stressors which occurred prior to 11 May 2012.
- Ms Yates pay the Regulator's costs of and incidental to this preliminary application."
- [3]An affidavit sworn by Cheryl-Lea Godfrey an Appeals Officer with the Regulator (attached to the application) stated amongst other things the following:
"k) Ms Yates contends that her stressors which caused her psychological injury occurred over a period of time from March 2012 to March 2014.
l) On 4 May 2012, Ms Yates attended her GP, Dr Ernest Finberg (Gold City Medical Centre, Charters Towers). The consultation note made for 4 May 2013 [sic] states: 'Works at Ravenswood in kitchens and laundry. C/O Bullying at work. Acute episode yesterday Now feel extremely anxious a suffering from what appears to be work related stress'. A script was written for Valium and a Certificate of sickness was prepared.
m) On 11 May 2012, Ms Yates again attended upon Dr Ernest Finberg. The consultation note made for 11 May 2012 states: 'Says she feels better since taking Valium but work situation unchanged. Is awaiting visit in 3 days from Senior Manager to resolve problem'."
Regulator
- [4]The Regulator called evidence from Dr Ernest Finberg (Dr Finberg) a retired General Practitioner who had treated Yates on two separate occasions (4 May 2012 and 11 May 2012). Dr Finberg gave evidence in terms of the two consultations confirming the content of the Patient Health Summary documentation [Exhibit 2].
- [5]At the consultation of 4 May 2012 Dr Finberg recorded the following under the heading of "Surgery consultation":
"Works at Ravenswood in kitchens and laundry. C/O Bullying at work acute episode yesterday Now feel extremely anxious a suffering from what appears to be work related stress".
C/O was said to mean "complained of".
- [6]A Certificate of Sickness was issued by Dr Finberg which stated:
"I HEREBY CERTIFY THAT ON 4 May 2012
I examined Michelle Annette Yates who is suffering from a medical condition
And will be unfit for duty today."
- [7]A prescription was issued for Valium (Tablets) of 2 mg strength.
- [8]On 11 May 2012 Dr Finberg provided treatment to Yates and recorded the following comment under the heading "Surgery consultation":
"BP Sitting 125/90 Pulse 54 Comments: reg says she feels better since taking Valium but work situation unchanged Is awaiting visit in 3 days from Senior Manager to resolve problem."
- [9]Dr Finberg's evidence was that whilst it was possible Yates had provided more information about her work situation he had only recorded what was in the patient summary notes. His understanding was that at 11 May 2012 Yates' work situation remained unchanged despite the fact that she was feeling better.
- [10]Dr Finberg's diagnosis of work-related stress on 4 May 2012 whilst not identified as a major depressive disorder "could" have been and he was not prepared to rule out such a diagnosis. Dr Finberg had only seen Yates on two occasions and had no involvement in ongoing treatment beyond 11 May 2012.
- [11]The Regulator provided a chronology in respect of Yates' claim for compensation commencing with an application for workers' compensation lodged on 24 March 2014 which identified an injury occurring on 21 March 2014. The application was rejected by WorkCover on 19 September 2014 whereby Yates had made an application to the Regulator for review of the WorkCover decision which was subsequently rejected by the Regulator with Yates advised of that decision on 6 March 2015.
- [12]A Statement of Stressors was filed by Yates on 6 May 2015 which identified Yates being exposed to bullying and harassment in the workplace in the period of April 2012 until March 2014.
- [13]There was no contention that the application for compensation was itself invalid however the stressors relied upon in the period prior to the assessment of Dr Finberg on 4 May 2012 were challenged in that s 131 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) requires that an application for compensation to be valid and enforceable it must be lodged by a claimant within six months of an entitlement for compensation arising:
"131 Time for applying
- (1)An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
- (2)If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer's liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
- (3)Subsection (2) does not apply if death is, or results from, the injury.
- (4)An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
- (5)An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to -
- (a)mistake; or
- (b)the claimant's absence from the State; or
- (c)a reasonable cause."
- [14]The application sought to strike out all stressors relied upon by Yates in the period prior to the assessment by Dr Finberg on 4 May 2012 as an application for workers' compensation had not been made in the six month time period nor had there been any issues raised in terms of special circumstances that would allow for consideration of a waiver.
- [15]There were further issues raised about a number of stressors and the detail contained within the Statement of Stressors however as those stressors went in the period beyond the consultations with Dr Finberg in May 2012 and there was no material available regarding any other medical assessment between May 2012 and March 2014 issue was not taken with the Applicant's concerns in this particular matter.
- [16]
"In order for a doctor to 'assess' an injury as an 'injury' within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment. It has not been established that the doctors directed themselves to that issue until the time of the making of the claim. Each of them was concerned with the treatment of Mr Toward. They knew that he had suffered injuries at various times but they did not direct their minds to the question of which physical injury, if any, arose out of employment."
In this case Dr Finberg had made an evaluation of Yates suffering a stress condition that had arisen out of the course of employment that satisfied the requirements of the Act - see Groos v WorkCover Queensland[2] (Groos).
- [17]The evidence of Dr Finberg should be accepted by the Commission in terms of his treatment and diagnosis. The stressors falling under that treatment "coverage" should therefore be removed from the Statement of Stressors in respect of the substantive matter.
Yates
- [18]The application was opposed by Yates with argument advanced that the stressors subject of the challenge be allowed to remain as part of the Statement of Stressors. The Act provides limitations regarding an injury in respect of an assessment by a medical practitioner but the same does not apply to a stressor and it would therefore be unsafe in this instance to strike out any of the stressors as sought by the Regulator's application.
- [19]A matter that ought to be considered by the Commission was the possibility of there being an aggravation of a pre-existing condition that had a connection to the stressors identified by the Regulator as being the target of a strikeout.
- [20]There was no disagreement with the authority of Groos as interpreted by the Regulator and in this case the Commission needs to hear the evidence around all the stressors identified in the Statement of Stressors. The position in Groos would have applied in 2012 however Yates decided not to apply for workers' compensation in the hope that a supervisor would address the issues and in fact had in those circumstances continued to undertake her normal duties.
- [21]It was submitted the application should be dismissed.
Conclusion
- [22]The effect of the application if granted would not inhibit the hearing of the substantive appeal in Townsville commencing 26 October 2015.
- [23]On consideration of the material before the proceeding including the evidence of Dr Finberg, it has been established that on 4 May 2012 Yates sought medical treatment for a condition said to have arisen as a consequence of bullying in the workplace. Dr Finberg recorded that Yates was "suffering from what appears to be work related stress" and confirmed this opinion in the course of his evidence. He went on to issue a Certificate of Sickness which identified Yates suffering from a medical condition and of her being unfit for duty on 4 May 2012. There appears to be some conjecture about whether Yates absented herself from her place of work that day or not but the point made by Dr Finberg was that in his opinion the medical condition which she was suffering warranted an absence from work on the day in question.
- [24]Yates again consulted with Dr Finberg on 11 May 2012 where she informed him that since taking the prescription drug Valium (prescribed by Dr Finberg on 4 May 2012) she was feeling better but her work situation was unchanged and she was awaiting the arrival of a Senior Manager to resolve the problem.
- [25]Effectively on 4 May 2012 there was a diagnosis of an injury which would have enabled Yates to lodge an application for workers' compensation. The diagnosis in this case is supported by the decision in Groos where Hall P stated:
"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive. If the legislature had wished to confine relief to cases in which a condition answered the criteria of DSM 4, the legislature might have said so. By way of example, s. 214 of the Workplace Relations Act 1997 (now repealed) provided 'If an expression used in this chapter is also used in the Termination of Employment Convention 1982, it has the same meaning as in the convention'. It is difficult to accept that a diagnostic standard developed to ensure that psychiatrists from different backgrounds diagnose on the basis of a common international standard is an appropriate mechanism to use in assessing whether a worker suffering impairment arising out of the course of his employment and to which his employment was a significant contributing factor, is entitled to assert entitlement to compensation for the impairment because he has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990. One cannot resist adding that the diagnostic standard is in terms about 'illness' rather than 'injury'. Noticing that where an injury is shown, 'impairment' as defined at s. 39, is by s. 43 of the Workers' Compensation Regulation 1992 assessed by using the AMA Guide, Dr Mulholland has worked backwards assessing the degree of impairment, noticing the causal nexus with the incident of 14 January 1997, and concluding that the appellant was 'injured' by the incident. It may be conceded that that process of reasoning is a process of reasoning which the Act does not require. I note the submission of WorkCover Queensland that the WorkCover Queensland Regulation 1997, s. 55(2) uses the verb 'must' in requiring reference to be had to the AMA standard in assessing impairment. It may be conceded that neither in the Workers' Compensation Act 1990 nor in the Workers' Compensation Regulation 1992 is an obligation to be found to use of the AMA standard to determine whether the worker has suffered an injury. Frankly, if the intention had been to impose an obligation to determine the existence of an injury by assessing impairment under the AMA standard I should have expected to find an express provision. But it has not been put that the existence of an injury must be determined in that way. What is put, and put correctly, is that in the case where there is no evidence to the contrary, the existence of the injury may be inferred from the existence of the impairment. In my view the Industrial Magistrate did not err in finding that the appellant had suffered an "injury" within the meaning of the Workers' Compensation Act 1990."
- [26]It is a matter of record that Yates for reasons best known to her did not within the six months prescribed in s 131 of the Act make an application for compensation after the 4 May 2012 diagnosis of injury however did lodge an application for worker's compensation on 24 March 2014. The injury diagnosed by Dr Finberg on 4 May 2012 is in the present circumstances unable to be considered as such an application for compensation would now not be valid or enforceable. It then goes that if such an injury is excluded then the stressors said to have contributed to the diagnosed injury would meet a similar fate and it would be an unrealistic and unsustainable situation if such stressors could form part of a claim for compensation lodged some 18 months beyond the finish of a prescribed time.
- [27]In terms of the argument proffered on behalf of Yates that the stressors subject of the application ought not be disturbed as there was potentially an option of pursuing an aggravation of a pre-existing condition, such argument suffers in that there is an absence in the pleadings of a mention regarding an aggravation nor does the application for compensation contain a reference for the term of aggravation.
Finding
- [28]I have determined the Regulator having established subject to the requisite standard of proof that as a consequence of Yates been assessed by a medical practitioner (Dr Finberg) on 4 May 2012 as suffering a stress condition that was work-related as a result of bullying in the workplace, the failure to lodge a claim for workers' compensation within the prescribed time period in respect of s 131 of the Act has had the effect of nullifying the stressors relevant to the 4 May 2012 diagnosis from the workers' compensation claim by Yates lodged on 24 March 2012.
- [29]The Statement of Stressors in terms of featuring precise dates is found by the Commission to be "wanting" therefore in consideration of the application to strike out a number of stressors, the Commission was minded not to consider particular stressors that were not specifically identified as having occurred at a time prior to 4 May 2012. The Commission has effectively erred on the side of caution in that for example it was not prepared to consider a stressor be struck out that was said to have occurred "on a date in early 2012". The standing or otherwise of these particular stressors would best be determined by evidence in the substantive proceedings. Accordingly the following stressors (only) are to be removed from the Statement of Stressors filed by Yates on 6 May 2015:
Approximately April 2012 | The Appellant started to experience continuous / daily bullying and harassment by her co-workers, namely three co-workers: Shellie Sullivan, Laurel Stuttard and Bonny Stuttard. This bullying included swearing, insults, speaking negatively about the Appellant to co-workers, segregating the Appellant in the lunchroom and communal areas, barking at the Appellant like a dog and sending her to do tasks around the camp which had already been completed. The Appellant does not understand why it began. |
Approximately April 2012 | Kim Drysdale recommenced employment at the Ravenswood site and was encouraged by the then Village Manager Kelvin Davies to act hostile and confronting toward the Appellant. Eventually, Ms Drysdale was required to work alongside the Appellant and decided that such treatment was not warranted and she had been told information about the Appellant was not true. |
In or around April 2012 | The Appellant and Kim Drysdale had reported to Steve that Kelvin Davies, Shellie, Bonny and Laurel had encouraged her to harass the Appellant. The Appellant understands no action was taken. |
- [30]Costs are reserved.
- [31]I order accordingly.