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  4. Sharples v Simon Blackwood (Workers' Compensation Regulator) - [2016] QIRC 46

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Sharples v Simon Blackwood (Workers' Compensation Regulator)[2016] QIRC 46

Sharples v Simon Blackwood (Workers' Compensation Regulator)[2016] QIRC 46

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sharples v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 046

PARTIES:

Sharples, Kaye Leslie

(Appellant)

v

Simon Blackwood (Worker's Compensation Regulator)
(Respondent)

CASE NO:

WC/2015/59

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

20 April 2016

HEARING DATES:

31 August, 1, 4, 7, 8, 22, 31 September, 9, 27 October 2015, 1 February 2016

HEARD AT:

Brisbane

MEMBER:

Deputy President Kaufman

ORDERS:

  1. The appeal is dismissed
  2. The decision of the Workers' Compensation Regulator is confirmed
  3. The Appellant is to pay the Respondent's costs of, and incidental to, the appeal in an amount to be agreed between the parties or, failing agreement, on application to the Commission

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - PSYCHIATRIC INJURY - whether appellant injured - credibility - where stressors are identified - where stressors are no longer relied on - whether relied upon stressor is the major significant contributing factor

CASES:

R v Turner (1975) QB 834

Ramsay v Watson (1961) 108 CLR 642

Ferrington v Blackwood [2014] QIRC 42

APPEARANCES:

Mr T. Sharples, agent for the appellant, and later Dr A. Greinke of counsel.

Mr C. Clark, of Counsel, directly instructed by Ms M. Mees, Workers' Compensation Regulator, for the respondent.

Reasons for Decision

  1. [1]
    The appellant, Ms Kaye Sharples, has taught English Communication at Palm Beach Currumbin State High since 2003.  English Communication is a subject designed for secondary school students who do not wish to attend university.  Ms Sharples claims to have suffered a psychiatric or psychological injury (injury) arising out of, or in the course of, her employment.
  1. [2]
    The initial WorkCover application which would lead to these proceedings, and this decision, was made by Ms Sharples on 2 April 2014.[1]  The application was rejected on 6 November 2014 and a request for review was filed on 7 November 2014.  On 23 January 2015 the Workers' Compensation Regulator rejected the application.  Ms Sharples appealed that decision of the regulator, to this Commission, on 12 March 2015.
  1. [3]
    It is not in contention that Ms Sharples was a worker.
  1. [4]
    Ms Sharples alleges that her injury was sustained as a result of an accumulation of stresses and pressures during the teaching periods of 2012 and 2013.  Specifically, she alleges that the injury was caused by the unruly behaviour of several students in the classes 11D, in 2012, and 12D, in 2013, (caused is the expression I shall generally use as an abbreviation for the compendium: "arising out, of or in the course of, employment" appearing in the s 32 definition of injury in the Workers' Compensation and Rehabilitation Act 2003.
  1. [5]
    It is necessary for me to briefly comment on the proceedings.  The manner in which this matter was conducted by the appellant's initial representative, her husband, Mr Terry Sharples, was largely unhelpful.  Mr Sharples is a querulous individual who obfuscated the issues rather than elucidating them.  As it was initially put, the appellant's case was that her injury occurred on 28 March 2014.  This is also the date specified in her WorkCover application for compensation,[2] when the nature of the injury was said to be "Psychological system in general, Anxiety/stress disorder" caused by "occupation related stress".  By the time of the making of final submissions, and after the evidence had closed, Dr Greinke, of counsel, who appeared for the appellant for that purpose, submitted that the injury was the result of an accumulation of events in the classroom, culminating in an incident on 24 October 2013.[3]

Statement of Stressors

  1. [6]
    In accordance with a directions order, the appellant provided a "Further Amended Statement of Stressors" that extended across nine separate stressors.  Stressor 1 appears to be a summary of the stressors during 2012/13: the difficult students; oversized classes; unduly heavy workload.  These incidents were more fully particularized in Stressor 1.1 to 1.14.
  1. [7]
    Stressor 2 suggests that the stress of performing Ms Sharples' role as a union representative contributed to her injury.  This was eventually not pursued.
  1. [8]
    Stressor 3 which suggests that the alleged posting of a list of teachers targeted for retirement, including the appellant, contributed to her injury, was also eventually not pursued.
  1. [9]
    Stressor 4 suggests that, due to being required to stand for most of the day, the on-going pain and discomfort of a leg wound suffered by Ms Sharples outside her work, which became ulcerated, contributed to her injury.  This was also not ultimately pursued.
  1. [10]
    Stressor 5 suggests that a refusal to allow Ms Sharples to return to work on a part time basis, after being absent due to the leg ulcer, contributed to her injury.  This point was also not pursued.
  1. [11]
    Stressor 6 deals with the unruly behaviour of a problematic student during February and March 2014, culminating in an incident on 24 March 2014.  This again, although the subject of considerable evidence, was ultimately not pursued.
  1. [12]
    Stressors 7 and 8 deal with what the appellant perceived to be disciplinary action taken against her as a result of the 27 March 2014 incident involving a letter from the school's management and a related meeting.  It was said that this constituted management action, which was neither reasonable, nor taken in a reasonable way.  Ms Sharples claimed that as a consequence of the taking of this action she suffered her injury.  Again, much evidence was led in relation to this issue, which was not pursued in final submissions for the appellant.
  1. [13]
    Stressor 8 suggests that the actions of certain members of staff between June and September 2014 "aggravated her current psychological injury due to their false allegations."  This was not pursued.
  1. [14]
    It was only after Dr Greinke appeared for Ms Sharples that the issues for consideration were so dramatically reduced.  It was finally submitted that the injury occurred on 24 October 2013 and that stressor one was the "case" for the appellant.[4]
  1. [15]
    At this early point I note the difficulty that the significant change in the appellant's case must have caused counsel for the respondent, Mr Clark.  However, no application was made by the respondent to reopen the matter in light of the appellant's new direction.

The issues for determination

  1. [16]
    The issues for consideration in this appeal fall under section 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').  During the course of the events relevant to this matter the Act was amended so that the definitional threshold of "injury" was raised.  Prior to the 29 October 2013 amendment, section 32(1) of the Act provided:

"An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."

  1. [17]
    With effect from 15 October 2013, (the amendment operated retrospectively) section 32(1)(b) of the Act relevantly provided:

  "An injury is a personal injury arising out of, or in the course of, employment if -

  …

(b)for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury."

  1. [18]
    The alleged injury, as the case was ultimately conducted, is said to have been caused by the accumulation of stress allegedly arising from the unruly classroom behaviour in 2102 and 2013 culminating with a shirt waving incident on 24 October 2013, eight days after the commencement of the amendment of s 32 of the Act.
  1. [19]
    It follows that the points which must be addressed in determining this matter are:
  • whether Ms Sharples suffered an injury; and
  • if so, and the date of the injury was 24 October 2013, whether her employment was the major significant contributing factor to the injury.  If her injury occurred prior to 15 October 2013 the inquiry is whether her employment was a significant contributing factor to it. 

Dr Greinke's submissions were made on the basis that the relevant definition is the post 15 October definition.

  1. [20]
    Given the narrowing of the issues by Dr Greinke it is no longer necessary to consider:
  • whether the injury was caused by management action; and
  • if the injury was caused by management action, whether that action was reasonable and taken reasonably.

Background

  1. [21]
    The facts, insofar as they are relevant, are set out below up until the date that the WorkCover application leading to this decision was filed.  Events subsequent to the date that Ms Sharples suffered the injury are not relevant.  The question is whether she suffered a personal injury and, if so, whether her employment caused the injury, and then, whether the employment was a significant, or the major significant, contributing factor to it (depending on what date the injury occurred).
  1. [22]
    From as early as 2006 Ms Sharples had difficulty maintaining order and control in her classrooms.[5]  The appellant's behavioural management techniques were finally overborne in 2012 and 2013 when she taught some classes largely comprised of adolescent males, some of whom were extremely difficult to teach.  It is accepted by both parties that the appellant's year 11D, in 2012, and then 12D, in 2013, English Communication classes, containing the students Jackson, Riley, James, Nick, Jack, Brock, Mitchell, Jaden, Jordan, and Tyler, were especially problematic.[6]
  1. [23]
    In late September 2013 the appellant wounded her leg in a non-work related incident.[7]  The wound was slow to heal.  On 24 October 2013, she was "not doing well physically with her leg/sore ulcer" and had been to see Dr Sabu Arunakumaran, a general practitioner, that morning.[8]  As a consequence of her visit to the doctor she had been told to take time off in order to allow her leg to heal.[9]  Later that day an incident occurred in a class the appellant was teaching.  The Further Amended Statement of Stressors describes the incident as follows:

"12D student [JS] came into the back of the classroom bare chested and started causing a commotion by yelling and waving his shirt over his head. Other male students joined in the yelling and banging desks. [The appellant] could not make herself heard above the din. The stress was too much for [the appellant] in her reduced condition (re leg ulcer) and she went to the staffroom where she broke down and asked for assistance.

Teachers Greg Hardy, Wendy Wise and Sandra Kelly returned with Kaye to classroom. Greg calmly and politely asked Jackson to go with him, which caused Jackson to start yelling aggressively at Greg and banging on the desk. Jackson was close in vicinity to Greg and Kaye thought that he was going to hit Greg. Teacher, Wendy Wise intervened and Greg went to fetch management. Jackson was removed and suspended."[10]  (My emphasis)

  1. [24]
    The appellant commenced leave the following day, 25 October 2013.  On that day she also visited the Kennedy Drive Medical Centre and saw Dr Maged Isaac.  Dr Isaac treated Ms Sharples' leg wound.[11]  On 28, 29, 31 October she saw Dr Sergiy Korol for further treatment of her leg wound.[12]  There was no mention of a psychological type injury.  On the date of the last visit, Ms Sharples filed a WorkCover application for the lower leg wound she had sustained in late September 2013.  That application described the injury's occurrence as follows:

"SIMPLE BRUISE BECAME BLISTERED, THEN SCABBED. STARTING TO HEAL IN SCHOOL VACATION BUT BECAME INFECTED AFTER RETURNING TO SCHOOL. LITTLE CHANCE TO REST AND ELEVATE and ALSO STRESS OF BAD BEHAVIOUR OF STUDENTS RETARDS HEALING".

  1. [25]
    That claim was only concerned with a physical injury.
  1. [26]
    On 4 November 2013 the appellant saw Dr Mark Brickley about her leg wound.
  1. [27]
    On 6 November 2013, Ms Sharples saw Dr Brickley again and told him that her work environment was stressful because of poor student behaviour.  During the 6 November visit, Dr Brickley provided the appellant with a referral to Mr Harry Theodore, a clinical psychologist.[13]  On 8 November 2013, Dr Brickley completed a "Workers compensation medical certificate" for the appellant, citing the cause of injury as "COMPLICATIONS OF LEG ULCER LEFT DUE TO ENVIRONMENT-STANDIN [sic] ALL DAY AND STRESSED BY CLIENTS."[14]  That WorkCover application would eventually be rejected by the Workers' Compensation Regulator, appealed to this Commission and eventually withdrawn by Ms Sharples.
  1. [28]
    On 18 November 2013, nearly a month after starting her leave, which commenced on 25 October 2013, the appellant visited Mr Theodore of Living Well Psychology.  In a letter to Dr Brickley dated 18 November, Mr Theodore noted the following:

"Kaye reports feeling panic in certain situations, overreacting in certain situation, finding relaxation difficult, easily agitated…. she feels frustrated that her leg injury sustained at home, has not been healing.  Her job requires periods of standing which do not facilitate the healing process.

Added to the delay of the healing process is that Kaye has been experiencing substantial stress from sustained low to medium level disruptive behaviour from one group of predominantly male students over the past two years.  She became concerned about her stress levels when she uncharacteristically snapped during and [sic] year 9 class 2 weeks ago.  Kay is significantly upset and is considering leaving the teaching profession, because she has felt that she has been unsupported by senior staff and the education Department generally.

Depression, Anxiety and Stress Scale (DAS21)

Depression: 20 moderate (14 to 20); Anxiety: 14: moderate (10 to 14);  Stress: 36 extreme (34+)"[15]

  1. [29]
    It is not clear to what the "2 weeks ago" refers as the appellant had been on leave since 25 October 2013.
  1. [30]
    In January 2014 Mr Theodore wrote that Ms Sharples was exhibiting symptoms consistent with a "diagnosis of Post-traumatic Stress Disorder."[16]
  1. [31]
    On 18 and 28 November, and 2 December 2013, the appellant visited Dr Arunakumaran again in relation to her leg ulcer and some other minor issues.  The appellant saw Dr Whitby, an infectious diseases expert, on 21 November.  A biopsy of the leg ulcer was conducted by Dr Whitby.  Dr Whitby was present during the 28 November visit where the results of the biopsy were discussed.  No new course of treatment appears to have come from the biopsy results.  During the 2 December consultation Dr Arunakumaran completed a form stating that Ms Sharples was unable to walk over 100 metres.[17]
  1. [32]
    On 9 December 2013 the appellant received the proposed class timetable for 2014.  She had been allocated a year 9 class.  Over the following days an email exchange would see Ms Sharples inform the school that she did not want to teach year 9.  Alternatives were requested.[18]  May Christiansen, Head of Department (English), informed the appellant that she would be unable to change the timetable as the year 8, 11 and 12 classes were taken and that it was no longer possible to teach just year 11 and 12 classes as the appellant had been doing.[19]
  1. [33]
    In the same email exchange with Ms Christiansen, the appellant enquired whether she might be able to work "not a full time load and have supers [sic]"[20] Ms Christiansen was unable to help the appellant as the roster arrangements had been settled some weeks prior.[21]
  1. [34]
    On 12 December 2013 Dr Whitby's report regarding the leg ulcer was received by WorkCover.
  1. [35]
    On 17 December 2013 the appellant was informed that her WorkCover claim of 31 October 2013 had been rejected on the basis that the injury had not been caused by her employment.[22]  On the same day Ms Sharples saw Dr Brickley.  The appointment appears to have been triggered as the result of the WorkCover rejection.  Dr Brickley referred the appellant to Dr North, a vascular surgeon, in order to have him examine the leg ulcer.
  1. [36]
    The applicant remained on leave for the first two weeks of Term One 2014.[23]  During this period, early to mid-January, the applicant received notification that she was to teach year 8 instead of year 9.  On 13 January the appellant saw Dr Brickley for a check-up of her leg wound; the same reason was also the cause of her visit to Dr Arunakumaran on 15 January, and then Dr Brickley again on 17 January.  Both doctors referred Ms Sharples to Dr J Stewart, but an appointment with him does not appear to have eventuated.  At the 17 January consultation, Dr Brickley produced a medical certificate for Ms Sharples.  The medical certificate did not refer to a psychological or psychiatric problem.[24]
  1. [37]
    On 23 January 2014, some three months after she had last worked, Ms Sharples visited Dr Edward Lyle at the Pines Family Practice.  The reasons for her visit were listed as anxiety and hypertension.  Dr Lyle referred the appellant to Dr Adem Can at the Currumbin Clinic.  Ms Sharples saw Dr Can on 28 January and 4 February 2014.  Dr Can was of the opinion, on 4 February 2014, that Ms Sharples "has been suffering from moderate level major Depressive Disorder and Generalized Anxiety Disorder in the context of recent stressors at work place…. [S]he is not suffering from Post Traumatic Stress Disorder."  I note that the nature of the stressors was not stated.
  1. [38]
    After an absence of three and a half months, whilst she recovered from her leg injury, the appellant returned to work on 10 February 2014; week 3 of the year's first school term.

Classroom events

  1. [39]
    JC, a boy in the appellant's year 8 class, required a teacher aide (Dane Clarke) to assist in dealing with his behavioural problems.  Mr Clarke was not available for all of JC's classes.  It was known that JC did not adjust well to change.[25]  JC was suspended from the school on 12 February 2014 following an incident unrelated to the appellant.
  1. [40]
    On 19 February 2014, Leoni Kent, Year 8 Coordinator, sent an email to relevant staff members who had contact with him and asked if they could provide some feedback on how JC was "going" in class prior to being suspended.  The appellant responded on the same day and informed Ms Kent that JC did not like change and that he was quite uncooperative; that he did not follow any work instructions but for on an occasion when Mr Clark had been there; and, that she would like Jack to be moved from her class if his current behaviour continued.[26]
  1. [41]
    By 4 March 2014 JC's behaviour, while Mr Clark was absent, had not improved.  The appellant wrote to Ms Kent and informed her of a number JC's behavioural events which had recently occurred.[27]
  1. [42]
    On 11 March 2014 the appellant again saw Dr Arunakumaran about the leg wound.[28]
  1. [43]
    A further incident involving JC occurred on 24 March 2014.  Both the appellant and Sandi Mlinar, another teacher, recorded the event in a reporting program called "OneSchool." The OneSchool entry made by the appellant was as follows:

"Students were researching on laptops for assignment.  I was showing a student how to access the school's PBC portal for database information when I noticed a 'kerfuffle' at the back of the room.  I immediately went there and found [TK] lying on the ground.  When he got up I asked him what happened but he declined to say.  He was red in the face so I said to get a drink then when he returned to write a report in confidence about what happened.  When incident occurred he had been returning to his desk to collect research booklet as he had to use PC as there were not enough laptops.  [TK] left room, then Ms Mlinar came in with [TK] and requested information.  [ZS] volunteered that [JC] had tripped [TK]. Ms Mlinar then took [JC], [TK] and [ZS] to write reports."[29]

  1. [44]
    The appellant did not see the event and entered her account of event into the OneSchool system later in the day.  Given the way the case was ultimately argued, the JC misbehaviour has become largely irrelevant, save as to demonstrating the shifting nature of the case and putting some of the medical evidence into context.
  1. [45]
    A good deal of evidence was led about the interaction between management and Ms Sharples following this incident.  This culminated in Ms Sharples receiving an "initial unsatisfactory performance" letter from Mr Blair Hanna, the director of Middle School, on 27 March 2014. The letter raised two issues: Ms Sharples' inability to create and maintain a supportive and safe earning environment; and, Ms Sharples' inability to plan and implement effective teaching and learning.[30]
  1. [46]
     Ms Sharples also met Ms Christiansen on 27 March 2014 and an "action plan" was formulated.  On 28 March Ms Sharples informed her employer that she declined to participate in the action plan.  This was the date which Ms Sharples initially claimed that her psychological/psychiatric injury occurred.
  1. [47]
    I have not set out the evidence relating to these events because it goes to the question of reasonable management action, which is no longer an issue in this appeal, given that Ms Sharples no longer contends that her injury was the result of management action.
  1. [48]
    The following day, Friday 28 March 2014, Ms Sharples commenced sick leave.  On that day she had visited Dr Edward Lyle.  The records indicate the consultation concerned scalp dermatitis.[31]  A medical certificate was also produced.  It indicated that she would be unable to work for the following week.[32]  Although it is not clear, it appears that she did not return to work.  On or about 2 April 2014, the appellant made her Application for Workers' Compensation, the subject of this appeal.[33]
  1. [49]
    The appellant's claim was denied on 6 November and this appeal was lodged on 7 November 2014.[34]

Stressors

  1. [50]
    As I have said, Ms Sharples initially outlined nine stressors in her Further Amended Statement of Stressors.[35]  Dr Greinke narrowed the case to just the first stressor and, accordingly, it is the only stressor which is necessary for me to summarize.[36]
  1. [51]
    The first stressor, with its particulars, is extracted below:

No.

Date

Description Workplace Event

1.

2012 ongoing to 2013

TEACHING STUDENTS 11D AND 12D

During first and second terms 2012 several students dropped out of the difficult OP English classes and were allocated to easier English classes (English Communication) taught by [Ms Sharples]. As a consequence 11D became oversized and included a large number of badly behaved male adolescent students whose unruly behaviour became progressively more stressful and violent over time. Behaviour included loud yelping noises, being argumentative, and acts of vandalism and violence.

[Ms Sharples] struggled with the unduly heavy workload of those lower streamed students. A small reduction occurred in Term 3 in 2012 but all the worst students remained and continued into 2013 in [Ms Sharples'] 12D class. This prolonged stressful environment was ongoing three times a week for 70 minutes for almost 2 years. The following are some of the more stressful incidents that occurred.

1.1

11 May 2012

Brock Phillips stabbed Riley Burns in the arm with a ballpoint pen causing a puncture mark. Riley was yelling out and upset.

1.2

13 July 2012

[Ms Sharples] was reading aloud to 11D when Jaiden Wakefield lit some paper and shoved it in his packet, causing the smell of smoke.

1.3

14 September 2012

Tyler Thompson arrived late to class, running in yelling "She's coming!" and knocking over furniture. Sharon Hillcoat, teacher from next classroom, then entered the room and asked the class who had yelled out rudely to one of her female students [Slut!]. Tyler refused to go to year co-ordinator and returned to classroom calling out abuse to Ms Hillcoat.

1.4

24 October 2012

11D class was using library facilities for research. During the lesson student Riley Burns had an altercation with another student and a whiteboard and several chairs were knocked over.

1.5

2 November 2012

11D classroom door was locked when [Ms Sharples] arrived for class and some boys were laughing loudly. [Ms Sharples] found the room in complete disarray with bin, desks and chairs knocked over.

1.6

14 February 2013

12D student Mitchell Carey instead of doing work banged on his desk and made yelping noises and sang a 'footy' song.

1.7

15 February 2013

12D student Mitchell Carey aggressively refused to leave the room when he advised he had to work under year co-ordinator's (Leoni Kent) supervision.

1.8

26 February 2013

12D student Jordan Stowers suddenly yelled out in the middle of silent reading time, disturbing others.

1.9

23 May 2013

12D students Mitchell Carey, Jack Berry and Nick Holloway refused to follow instructions and began chanting and banging on their desks. They ignored [Ms Sharples] until she threatened to record their behaviour on One School system.

1.10

7 June 2013

12D student Brock Phillips yelled out for no reason. When [Ms Sharples] asked the reason he replied he was just having some fun.

1.11

2 August 2013

12D students Brock Phillips, Jackson Schepers and Jack Berry were throwing a drink bottle between themselves and making yelping noises. At the end of the lesson when students were packing up, Jack berry and Brock Phillps started to fight. [Ms Sharples] called out to stop and stay behind but Brock walked off.

1.12

23 August 2013

12D student James Holland grabbed student Matt Andrews around the neck in a headlock. Matt fell off his chair and he was dazed, blanched and had a 'carpet burn' on his arm.

1.13

29 August 2013

12D student Jackson Schepers, Riley Bruns, James Holland, Nick Holloway and Jordan Stowers arrived in a loud stampede, yelling and banging on the wall outside the classroom.

1.14

24 October 2013

12D student Jackson Schepers came into the back of the classroom bare chested and started causing a commotion by yelling and waving his shirt over his head. Other male students joined in the yelling and banging desks. [Ms Sharples] could not make herself heard above the din. The stress was too much for [Ms Sharples] in her reduced condition (re leg ulcer) and she went to the staffroom where she broke down and asked for assistance.

Teachers Greg Hardy, Wendy Wise and Sandra Kelly returned with [Ms Sharples] to classroom. Greg calmly and politely asked Jackson to go with him, which caused Jackson to start yelling aggressively at Greg and banging on the desk. Jackson was close in vicinity to Greg and [Ms Sharples] though that he was going to hit Greg. Teacher, Wendy Wise intervened and Greg went to fetch management. Jackson was removed and suspended.

  1. [52]
    It is noteworthy that the only reference to "stress" is in relation to the last incident referred to in the first stressor.
  1. [53]
    The respondent accepts that the behaviour of the appellant's 11D and 12D classes over 2012 and 2013 was "unruly and boisterous".[37]  The respondent does not admit the behaviour of the class, up to and including the 24 October 2013 incident, caused Ms Sharples' injury.[38]  It does not appear to be in dispute that Ms Sharples suffered a personal injury of a psychological or psychiatric nature.

Injury

The medical evidence

  1. [54]
    In support of the submission that Ms Sharples suffered a personal injury, the appellant relied upon the evidence of Mr Theodore and Dr Can.  In January 2014, Mr Theodore described the appellant as having symptoms consistent with PTSD.[39]
  1. [55]
    Dr Can found that the appellant was suffering from a moderate level Major Depressive Disorder and Generalized Anxiety Disorder. He was of the opinion that Ms Sharples was not, at that point in time, suffering from PTSD.  Dr Can's report is dated 4 February 2014.[40]
  1. [56]
    Mr Theodore's testimony during the hearing was sometimes difficult to follow but he agreed with Dr Can's conclusion and was able to reconcile their differing opinions, as, in his opinion, PTSD and Generalized Anxiety Disorder fall under the same umbrella of anxiety disorders.[41]  Further, after some treatment, and by the time Dr Can would assess Ms Sharples, he considered the symptoms that she had been exhibiting may have abated such that Dr Can's diagnosis was a more accurate reflection of her mental state at that point in time.[42]
  1. [57]
    Later in his oral evidence Mr Theodore stated that Ms Sharples' decompensation occurred as the result of the letter she received from the school on 27 March 2014.  Mr Theodore suggests that the behaviour of the classrooms in 2012 and 2013 created in the appellant a psychological vulnerability such that if further stress or trauma occurred she would have been more vulnerable to decompensate than she otherwise might have been.[43]  This evidence leaves open the possibility that until 27 March 2014 the appellant was not suffering a personal injury.
  1. [58]
    Dr Can's evidence was generally unremarkable.  He was still treating Ms Sharples and his oral testimony tallied with his written opinions of her condition in the first few months of 2014.  In his report of 10 August 2015, Dr Can observed that Ms Sharples mood had fluctuated in the past year and a half, depending on her stress level at the particular time.[44]  In relation to his observation about her fluctuating mood, Dr Can said the following during his Evidence in Chief:

"… there was a different assertion when she came and saw me first. The focus of her stresses were more about the students' inappropriate behaviour and - as well as there were issues about not having enough support from the - her workplace and from the school. … I think it's October, November, during that period of time and that application [for compensation] was declined, and that gives her extra stress….  "[45]

  1. [59]
     In discussing his initial report of 4 February 2014,[46] Dr Can confirmed that he had identified three different stressors, namely stressors at the workplace, the leg ulcer which had been slow to heal, and the worker's compensation application.[47]
  1. [60]
    Dr Can's opinion of Ms Sharples' condition beyond this point then speaks to the events arising from Ms Sharples' year 8 class and the management action taken in relation to it.

Ferrington v Blackwood

  1. [61]
    The appellant submits that there is sufficient evidence to conclude that an injury was sustained on 24 October 2013.  Ferrington v Blackwood [2014] QIRC 42 is cited as authority to support the submission that Ms Sharples did, indeed, suffer a psychological or psychiatric injury even if that injury did not meet the criteria stipulated in the relevant edition of the Diagnostic and Statistical Manual of Mental Disorders ('DSM').
  1. [62]
    In Ferrington v Blackwood the appellant was exposed to the fumes of a chemical solvent for a brief period of time and immediately experienced a range of violent and serious symptoms that, after a period, plateaued into alleged peripheral nerve damage.  No explanations could be found for Mr Ferrington's symptoms and, in any event, the Commission was bound by the opinion of the Medical Assessment Tribunal; that opinion being that there were no organic or neurological causes for his condition.  The psychological and psychiatric evidence indicated that Mr Ferrington's symptoms did not fit within the categories of the DSM.  However, despite this, it could be said that Mr Ferrington had suffered an injury within the meaning of the Act.
  1. [63]
    In this matter there is no question of whether Ms Sharples' symptoms fall under the rubric of a particular illness.  For that reason the decision in Ferrington is not relevant. The issue is not whether Ms Sharples has a readily diagnosable illness, and if not, whether the symptoms are capable of constituting an injury.  The issue for me to determine is whether the personal injury of Ms Sharples is an injury for the purposes of s 32 of the Act.

Expert evidence based on self-reports

  1. [64]
    In its written submissions the respondent questioned the expert medical opinions on which the case of the appellant relies.  When boiled down the respondent's submission is that the expert medical reports of Dr Can and Mr Theodore are based on self-reports made by the appellant.  It follows that, if the self-reports are unable to be verified, the opinions of the experts are likely to be thrown into doubt.  I accept this.  I agree that the propositions extracted from the cases of Ramsay v Watson[48] and R v Turner[49] are, to the extent that any misreports are fallacious, relevant and applicable to this matter: where an expert has been misled, his or her opinion is likely to be of less value.  The facts supporting the expert's opinion are critical if the opinion of the expert is to be relied upon.
  1. [65]
    In this matter the opinions of Mr Theodore and Dr Can are based upon the facts, as reported, by the appellant.  If the appellant has misled either Mr Theodore or Dr Can then their opinions should be accorded less weight.
  1. [66]
    To some extent, the respondent is justified in questioning the credit of the appellant.[50]  There are some matters which cast doubt over her credibility.  She gave her evidence in a self-serving manner.  She exaggerated incidents, such as her name appearing on a list of teachers slated for redundancy and her involvement in a union election and other matters.  Her evidence dealing with the redundancy lists was crafted to give the impression that she had seen her name on the list, although she did not say that she had actually seen it.

Consideration

  1. [67]
    The appellant bears the onus of persuading me, on the balance of probabilities, that she suffered a s 32 injury.
  1. [68]
    Although I have dealt with much of the medical evidence in setting out the chronology of relevant events, it is useful to refer to the medical evidence in more detail.

Mr Theodore

  1. [69]
    Mr Theodore cannot be satisfied that the shirt waving incident caused appellant to decompensate.[51]
  1. [70]
    Although the appellant might have suffered PTSD in 2013, she was not suffering it at the time of her claim.
  1. [71]
    Ms Sharples felt that she had improved.  She "had decompensated again from the letter in the interview."[52]
  1. [72]
    "Decompensating would certainly be receiving the letter. …Ms Sharples was gradually getting over the process of being traumatized by those boys …" The "initial unsatisfactory performance" letter was among the main reasons the appellant decompensated.  The "events of 2013 created a psychological vulnerability, so that when further trauma or – or stress occurs, that you're more vulnerable to decompensation than – than you might otherwise have decompensated".[53]
  1. [73]
    As I have said, this seems to me to raise the possibility that the appellant may not have been suffering from a personal injury until the receipt of the letter on 27 March 2014.  The evidence of Mr Theodore is to the effect that that was when Ms Sharples decompensated.
  1. [74]
    It must again be noted that this is consistent with the manner in which Mr Sharples ran the case, as well as the stated date of the injury on the workers' compensation claim.[54]

Dr Can

  1. [75]
    Dr Can first saw her on 28 January 2014, when he wrote: "Her mood has fluctuated in the last 1.5 years, depending on her stress levels."[55]
  1. [76]
    Dr Can listed several stresses to which the appellant had been subjected according to her narrative; students' inappropriate behaviour, not having enough support from her workplace and from the school, a work claim application [in relation to the leg ulcer] being declined [on 17 December 2013], not being able to finance a hospital day program for extra treatment, the 28 March 2014 letter.  Those different levels of stressors affected her mental state.[56]
  1. [77]
    It should be remembered that the appellant was off work from 25 October 2013 until 10 February 2014.  She first saw Dr Can on 28 January 2014 – some three months after going off work following the shirt waving incident and the problematic leg ulcer.
  1. [78]
    The question must be asked; why was there no mention of psychological symptoms to her doctors - despite many visits between 24 October 2013 and approximately 23 January 2014 when Dr Lyle referred her to Dr Can?  At the time she saw Dr Lyle the appellant gave her reasons for the visit as anxiety and hypertension.[57]  She had not returned to work, and would not do so until 10 February.
  1. [79]
    This again, as well as Mr Theodore's narrative, tends to support a finding that appellant did not actually decompensate until after her return to work and the receipt of the letter on 27 March 2014.
  1. [80]
    In Dr Can's first report, dated 4 February 2014,[58] he stated that Ms Sharples "has been suffering from Moderate Level Major Depressive Disorder and generalized Anxiety Disorder in the context of recent stressors at work place leg ulcer which has been delayed in healing, and worker' [sic] compensation application."  Dr Can accepted that he had identified three distinct stressors.[59]  He did not see the appellant between 17 February and 9 April 2014.[60]

Conclusion

  1. [81]
    Having regard to the evidence, particularly that of the appellant as to the history of events leading to the making of her workers' compensation application, as well as the medical evidence, it is evident that Ms Sharples was subject to several stressors during her employment.  These have been referred to in the preceding paragraphs.  The change in the way the case was put, especially the alleged date of the injury, also adds to the uncertainty, and to my inability to be satisfied that Ms Sharples employment is a, or the major, significant contributing factor to her injury.
  1. [82]
    Given the manner in which the case was ultimately argued, the focus of my consideration has significantly narrowed.  Ms Sharples contends that she suffered an injury that crystallized with the shirt-waving incident.  It is submitted on her behalf that her injury was the result of an extended period of student misbehaviour that came to a head with the shirt-waving incident on 24 October 2013.
  1. [83]
    A difficulty with the manner in which the case was ultimately put on behalf of the appellant, that the case is an accumulation case, not a decomposition case, is that the evidence, medical and lay, was premised on the basis that the injury the subject of the workers' compensation claim occurred on 27/28 March 2014.  Although there is evidence to support the submission that Ms Sharples was stressed at various time during 2012 and 2013 I am not able to discern if, or when, that stress crossed the threshold and became a psychiatric or psychological injury.  There is scant evidence of marked or prolonged or significant distress or a significant impairment of functioning such as would allow me to find that her injury had been suffered during 2012 and 2013.  It was not submitted, nor, I suspect, could it have been, that being subjected to stress is of itself an injury.
  1. [84]
    I accept that appellant suffered a psychological or psychiatric injury that arose in the course of her employment.  However, she has been unable to persuade me, on the balance of probabilities, that the employment was a significant contributing factor to the injury, let alone the major significant contributing factor.
  1. [85]
    The evidence is that there were several stressors, each of which seems to have had some bearing upon the injury.  The evidence does not enable me to conclude that the employment (particularly the class room behaviour) was a significant, or the major significant, contributing factor to the injury.
  1. [86]
    The appeal must be dismissed.

Footnotes

[1] Exhibit R29.

[2] Exhibit R29.

[3] T9-13, 14.

[4] T9-23.

[5] Exhibit R9.

[6] T9-6.

[7] Exhibits R2, p11; R28 (This, the electronically lodged "Online Claim Form, was marked in error, there already being an exhibit R28).

[8] Exhibit R2.

[9] Exhibit A41.

[10] Exhibit A5.

[11] Exhibit R2.

[12] Exhibit R2.

[13] T3-7.

[14] Exhibit A4.

[15] Exhibit A36.

[16] Exhibit A37.

[17] Exhibit R2.

[18] Exhibit R3.

[19] Exhibit R3.

[20] Exhibit R3.

[21] Exhibit A2, Attachment D. 

[22] Exhibit R28 (This, the electronically lodged "Online Claim Form, was marked in error, there already being an exhibit R28). 

[23] T1-44.

[24] Exhibit R2.

[25] Exhibit A41.

[26] Exhibit A11.

[27] Exhibit A11.

[28] Exhibit R2.

[29] Exhibit A10.

[30] Exhibit A12.

[31] Exhibit A42.

[32] Exhibit A14.

[33] Exhibit R29.

[34] Form 9 - WCR Notice of Appeal, filed 12 March 2015.

[35] Exhibit A5.

[36] T9-23.

[37] T9-6.

[38] Submissions on Behalf of the Respondent Regulator, p8.

[39] Exhibit A37.

[40] Exhibit A38.

[41] T3-18.

[42] T3-18.

[43] T3-28.

[44] T6-12; Exhibit R27.

[45] T6-12 and 13.

[46] Exhibit A38.

[47] T6-16 and 17.

[48]Ramsay v Watson (1961) 108 CLR 642, 648-9.

[49] R v Turner (1975) QB 834, 840.

[50] Submissions on Behalf of the Respondent Regulator, pp 5 and 8.

[51] T3-14 and 18.

[52] T3-21.

[53] T3-28.

[54] Exhibit R29.

[55] T6-12.

[56] T6-12 and 13. 

[57] Exhibit A42.

[58] Exhibit A38.

[59] T6-17.

[60] T6-18.

Close

Editorial Notes

  • Published Case Name:

    Sharples v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Sharples v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2016] QIRC 46

  • Court:

    QIRC

  • Judge(s):

    Deputy President Kaufman

  • Date:

    20 Apr 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ferrington v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 42
2 citations
Jump To
Cite 1 - [2014] QIRC 42
Cite 2 - [2014] QIRC 42
R v Turner (1975) QB 834
2 citations
Jump To
Cite 1 - (1975) QB 834
Cite 2 - (1975) QB 834
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642

Cases Citing

Case NameFull CitationFrequency
Sharples v Workers' Compensation Regulator [2020] ICQ 2029 citations
1

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