Nichols v Workers' Compensation Regulator
[2017] QIRC 111
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- Unreported Judgment
- Nichols v Workers' Compensation Regulator[2017] QIRC 111
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Nichols v Workers' Compensation Regulator[2017] QIRC 111
Nichols v Workers' Compensation Regulator[2017] QIRC 111
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nichols v Workers' Compensation Regulator [2017] QIRC 111 |
PARTIES: | Corina Nichols (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2017/76 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 8 December 2017 |
HEARING DATE: | 6 December 2017 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Bloomfield |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological /psychiatric injury – claimed injury over a period of time – whether injury date more readily identifiable – medical certificates, hospital records and information provided by the appellant referred to – date of psychological/ psychiatric injury established as 3 June 2013 |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 131, s 258 Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106 Kiesouw v Workers' Compensation Regulator [2017] QIRC 064 |
APPEARANCES: | Mr C. Nichols, the Appellant. Mr A. Kitchin, Counsel directly instructed by the Workers' Compensation Regulator. |
Decision
- [1]Ms Corina Nichols first lodged an application for workers' compensation for a psychological/psychiatric injury on 2 June 2014. At the time, she was employed by the Catholic Education Office, Diocese of Toowoomba, as an Office Manager and her injury was said to have been caused by workplace bullying, which commenced shortly after the beginning of her employment in mid-February 2013.
- [2]Without traversing the full history of this matter, the present proceedings relate to an appeal by Ms Nichols against a decision of the Workers' Compensation Regulator dated 11 April 2017, in which the Regulator confirmed an earlier decision of WorkCover Queensland to reject Ms Nichols' application for compensation.
- [3]In particular, the proceedings involve the determination of the date of Ms Nichols' psychological/psychiatric injury, so as to allow each of Ms Nichols, the Regulator and the Commission as presently constituted to better focus their attention on s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), insofar as it requires the Commission to determine the date Ms Nichols' psychological or psychiatric injury was sustained for the purposes of examining the factors causative of her sustaining that personal injury.
- [4]Mr A Kitchin, who appeared for the Regulator, filed submissions on 22 November 2017 in support of his contention that Ms Nichols' psychological or psychiatric injury was sustained on 3 June 2013. In the course of developing his argument supporting that date, he submitted, inter alia:
- the core requirement under s 32 is determining the cause of a personal injury. That requires the Commission to make a determination on what the injury is, when it occurred and what gave rise to it. The latter question can only be answered after the first two questions are answered;
- an injury does not need to be an injury under the Diagnostic and Statistical Manual of Mental Disorders (DSM) in order to amount to an injury under s 32 of the Act.[1];
- Ms Nichols' injury was fully formed/fully developed as a diagnosed case of "Depression" on 3 June 2013 when the appellant saw Dr Eswaran and was recorded as having presented as follows: "Feeling down and crying. Work place bullying. Issues at work and one lady is bullying her. An event happened on last Thursday and started to cry and feeling bad since";
- during the course of the visit to Dr Eswaran, Ms Nichols was diagnosed as suffering from Depression and was prescribed anti-depressants, which she started to take that day;
- Dr Eswaran also contacted the Acute Mental Health Unit at Toowoomba Hospital about a possible referral to that Unit. To facilitate this possibility, Dr Eswaran wrote, and then faxed, a referral to the Hospital so that the Unit could contact Ms Nichols;
- later that afternoon Ms Nichols presented at the Mental Health Unit at 6:40pm, having been driven there by her mother, on the basis that she was not coping and required the Unit's assistance;
- Dr Eswaran also provided Ms Nichols with a medical certificate for Monday 3 and Tuesday 4 June 2013 on the basis she was not fit to attend work.
- [5]In Mr Kitchin's submission, Ms Nichols' psychological/psychiatric injury (Depression) occurred no later than 3 June 2013. As such, only those events that preceded that date may have been causative of her injury. Any events which occurred in the course of Ms Nichols' employment after that date may have exacerbated or perpetuated the injury but did not cause the injury. If any work related events exacerbated Ms Nichols' injury then those matters would need to be separately pursued by Ms Nichols as an "aggravation injury" for the purposes of s 32 of the Act.
- [6]In her oral submissions during the hearing, Ms Nichols said that her injury occurred on 30 June 2014, being the date she left the employment of the Catholic Education Office. When questioned by the Commission as presently constituted about why such date was identified as the date her injury occurred, Ms Nichols responded with words to the effect that it was because she ceased being bullied by her major protagonist and another person supported by that bully on that date. [I note that Ms Nichols' initial workers' compensation action was actually lodged on 2 June 2014, four weeks prior to the date referred to above].
- [7]Alternatively, in both her oral submissions and in her written submissions (lodged on 23 November 2017), Ms Nichols said that her injury could not have occurred prior to her admittance to the Acute Mental Health Unit (Bamal Wing) of the Toowoomba Hospital for approximately 10 days in late October 2013 at which time she was diagnosed as having a psychological or psychiatric condition by a qualified psychiatrist. In Ms Nichols' submission, a psychological/psychiatric injury could only be diagnosed by someone qualified to make such diagnosis, which did not include a General Practitioner.
- [8]In response to a further question from the Commission as presently constituted, Ms Nichols confirmed that she did not attend work on either Monday 3 June or Tuesday 4 June 2013 on the basis that she was not in a state of mind which would have allowed her to go to work. However, she said that her financial and other circumstances, as a single mother with two dependent children, dictated that she needed to attend work on the following day, and thereafter until she was admitted to the Bamal Wing of the Hospital in late October 2013. During the period between early June to late October 2013 she continued to attend the practice of Dr Eswaran and other medical and health practitioners who were providing help and support to her.
Consideration and Conclusion
- [9]As Mr Kitchin noted in his submissions, s 32 of the Act requires the Commission to establish, in matters involving a psychological/psychiatric injury, when and how such injury occurred in order to establish whether such injury might be captured by the exclusionary provisions at s 32(5) of the Act, or not.
- [10]In this respect, as I noted in Kiesouw[2], events which occur after a worker suffers a psychological/psychiatric injury cannot have contributed to the development of such injury. Consequently, there is a need to identify when an injury occurred so as to only permit material relevant to the development/causation of that injury to be canvassed in an appeal proceeding such as the one commenced by Ms Nichols.
- [11]Based on the medical evidence referred to above, as well as Ms Nichols' concessions during the proceedings on 6 December 2017 (also canvassed above), I have determined that Ms Nichols' decompensation occurred on 3 June 2013, on which date she:
- presented to Dr Eswaran in an upset/crying state, reporting the cause of her distress as workplace bullying;
- was diagnosed with Depression by Dr Eswaran*;
- was prescribed by Dr Eswaran, and started to take, an anti-depressant;
- presented at the Acute Mental Health Unit at Toowoomba Hospital on the basis that she could not cope; and
- was first unable to attend work because of her psychological or psychiatric condition.
[*Note: it is now well established that a psychological/psychiatric injury does not need to be diagnosed under the DSM regime to be accepted as an injury under the Act.[3]]
- [12]In terms of the matters I am required to consider pursuant to s 32 of the Act, events which might have occurred after 3 June 2013 are not relevant in terms of the causation of Ms Nichols' psychological or psychiatric injury and, as such, cannot be considered as part of the present appeal.
- [13]Given my findings as to the date of her psychological or psychiatric injury, Ms Nichols is hereby directed to prepare a Further Amended Statement of Facts and Contentions (Form 9A) which describes the events and circumstances she asserts caused, or contributed to the causation of, her psychological or psychiatric injury on 3 June 2013 and to file it in the Industrial Registry, and serve it on the Regulator, by 4:00pm on Friday 19 January 2018.
- [14]The Regulator is also directed to prepare a Further Amended Statement of Facts and Contentions in response to the Appellant's Further Amended Statement by 4:00pm on Friday 2 February 2018.
- [15]Further directions will be issued following receipt of the Regulator's material, as described immediately above.
- [16]I determine and Order accordingly.