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Ebsworth v Workers' Compensation Regulator[2017] QIRC 28

Ebsworth v Workers' Compensation Regulator[2017] QIRC 28

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ebsworth v Workers' Compensation Regulator [2017] QIRC 028

PARTIES: 

Paul Ebsworth

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2016/94

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

5 April 2017 

HEARING DATES:

12, 13, 14 December 2016

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDERS:

  1. The Appeal is dismissed;
  2. The decision of the regulator dated 10 May 2016 is confirmed;
  3. Costs are reserved.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological injury – multi-factorial causation – association with employment in contention – whether injury removed from s 32(1) by virtue of the operation of s 32(5)(c) – whether injury arose out of, or in the course of, the workers' compensation claims process.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(5)(c), s 550; Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010.

APPEARANCES:

Mr C Newton, Counsel, instructed by Hayes Gabriel Solicitors, for the Appellant.

Mr P O'Neill, Counsel, instructed by the Workers' Compensation Regulator, the Respondent.

Decision

 Introduction

  1. [1]
    Mr Paul Ebsworth ("the appellant") appeals a decision of the Workers' Compensation Regulator ("the regulator") dated 10 May 2016 in which the regulator confirmed an earlier decision of the self-insurer, Glencore Queensland Limited, to reject his application for compensation. The appellant had notified the self-insurer of a secondary psychological injury on 2 November 2015.  The appellant's application for review was received by the regulator on 22 February 2016.
  1. [2]
    The appellant had been employed by Clermont Coal Pty Ltd since 1 February 2014 in the capacity of dozer operator. It was the appellant's case that he developed the psychological injury secondary to an accepted physical injury sustained on 10 April 2015 while operating his dozer. The accepted injury was described as an "aggravation of pre-existing degenerative spondylosis". In his notice of appeal, the appellant said that he suffered, and continues to suffer from, a major depressive disorder and that the disorder was directly caused by his accepted physical injury.
  1. [3]
    The appellant had sought treatment for his lower back injury from the Noosa General Practice on 14 April 2015 and lodged a workers' compensation claim on 29 April 2015. While this claim was initially rejected by the self-insurer on 11 June 2015, this decision was subsequently set-aside by the regulator's review unit on 9 October 2015, and it was determined that the claim was one for acceptance.
  1. [4]
    The self-insurer responded to the accepted claim by making weekly payments from the date of injury to 10 July 2015 and by reimbursing medical expenses incurred up to 31 July 2015. On 18 November 2015 the self-insurer decided to cease the claim on the basis that the effects of the aggravation would have resolved by 10 July 2015 and the requirement for medical benefits would have ended by 31 July 2015. While the appellant sought a review of the self-insurer's decision to cease payments and benefits, this decision was confirmed by the regulator's review unit in a decision dated 10 May 2016.
  1. [5]
    While the appellant reported increased levels of anxiety to his general practitioner on 10 June 2015, psychological symptoms were not mentioned again until a consultation of 26 October 2015 when the appellant reported multiple symptoms of depression. On 30 October 2015, Dr Dean issued the appellant with a workers' compensation medical certificate and referred the appellant to a psychologist (Ms Korman). The appellant subsequently attended on Ms Korman on 2 November 2015 and 9 November 2015.
  1. [6]
    On 27 November 2015, at the self-insurer's request, the appellant was referred to a psychologist, Dr Yoxall, for assessment. Dr Yoxall's subsequent report is dated 22 December 2015 and is in the evidence as Exhibit 14. Dr Yoxall relied on medical notes to inform a view that the appellant had previously suffered depression for which anti-depressants had been prescribed. The depression emerged in about March 2011 and was related to a marriage break-up and business problems. Dr Dean commenced a GP Mental Health Plan and referred the appellant to a psychologist, Mr Zemek. While the appellant may not have commenced taking the anti-depressants, he again reported symptoms of depression to Dr Dean in July 2012 referring to a low mood associated with relationship loss and financial concerns.
  2. [7]
    In her report, Dr Yoxall noted that following the 9 October 2015 decision of the regulator, the self-insurer accepted the appellant's claim for total incapacity from 14 April 2015 to 10 June 2015 (should be 10 July 2015), and for medical expenses until 31 July 2015 "pending further medical review to determine the full extent of the aggravation". It was for that purpose that the appellant was assessed by Dr Winstanley on 11 November 2015.
  1. [8]
    In his report dated 13 November 2015 (Exhibit 12) Dr Winstanley expressed a reservation about the appellant's presentation and reporting of symptoms during the November 2015 examination. He concluded that the appellant "has a complaint of pain which is not verifiable and has some inconsistency associated with examination". Dr Winstanley also opined that psychosocial factors were affecting the appellant's presentation of pain and said that his "injury presentation is associated with chronic pain status or depressive illness."
  1. [9]
    The appellant was assessed by Dr Markou, a psychiatrist, on 15 June 2016 at the request of the appellant's lawyers.  Dr Markou's report (Exhibit 6) notes that about six years earlier the appellant had been prescribed anti-depressants following the breakdown of his marriage. The appellant said however that he did not take the medication, that his symptoms resolved over a period of months, and that he had not suffered depressive symptoms since then other than those related to his recent injury at work.

Legislation

  1. [10]
    The appeal will turn on determinations to be made about the application of s 32 (1) and s 32(5)(c) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

"32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—
  1. (a)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
  1. (b)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

  1. (2)
    Injury includes the following—

…

(ba)  an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;

…

  1. (3)
    For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (4)
    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—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Regulator or an insurer in connection with the worker's application for compensation."

Nature of Appeal

  1. [11]
    The appeal to the Commission is conducted by way of a hearing de novo.  It is not an appeal strictu sensu, but is a trial of the injured worker's claim for compensation. The legislative questions to be answered in the determination of the appeal are:
  1. (i)
    whether the appellant's psychological or psychiatric injury arose out of, or in the course of, his employment;
  1. (ii)
    whether the appellant's employment was the major significant contributing factor to the injury; and
  1. (iii)
    whether, pursuant to s 32(5)(c) of the Act, the psychiatric or psychological disorder arose out of, or in the course of, action taken by the regulator or the self-insurer in connection with the application for compensation.
  1. [12]
    Whether, and to what extent, the employment contributed to the development of the psychological injury involves an examination of the pain and other adverse effects that arose from the physical injury. This examination is limited to the effect only of the accepted claim viz an aggravation of pre-existing degenerative spondylosis. At the time of lodgment of the appeal, this was a significant consideration because Dr Winstanley's evidence had been that the effects of the aggravation would have resolved within three months of the date of injury.
  1. [13]
    In those circumstances, the appellant would have had to establish that his psychological injury was caused by pain and other factors surfacing between the day of injury and 10 July 2015.  Given that there had been only a fleeting mention of anxiety in the medical records of consultations prior to 10 July 2015 and given that probable depression was not diagnosed until 26 October 2015, the prospects of the appeal would have been problematic.
  1. [14]
    However following resolution of the appeal in matter WC/2016/93, it is now accepted that the effects of the aggravation did not resolve by 10 July 2015, and that a treatment failure had led to the appellant's pain becoming chronic. In these circumstances, this appeal is to be determined in a context where pain attributable to the aggravation had continued beyond 10 July 2015 and, on the balance of probabilities, extended up to or beyond 26 October 2015 by which time the appellant had decompensated.
  1. [15]
    The questions to be answered are what were the factors giving rise to the psychiatric condition, when did the condition arise, and was the psychiatric injury excluded by section 32(5)(c) of the Act.

 Appellant's Evidence

  1. [16]
    The appellant accepted that his psychological condition had been negatively impacted by a number of stressors.  He said that, in current terms, stressors continued to impact negatively and he assessed the impact at the time of giving his evidence as being no different to what it had been in 2015. Stressors included financial and relationship difficulties, a loss of work routine, identity and self-worth, the failure of the employer to support his claim, and delays in the resolution of his claim. Whatever the range of stressors however, the root cause of his psychological condition was his back injury, including the ongoing pain and incapacity (T1-35):

"In the scale of issues, what's the thing that's been your greatest concern?‑‑‑It's been the pain.  I mean, I've had a sore back.  I haven't been able to work because of the pain, so then the financial thing – everything just snowballs.

All right.  And are those things, from your perspective, more important than your dissatisfaction with the WorkCover process from Glencore?‑‑‑Well, if I – if I haven't – if I haven't injured myself on that day – I'm working.  You know, I've got a job and there's no problem.  You know, whether it's working for Glencore or – or finding another job somewhere else."

  1. [17]
    The effect of the appellant's evidence was that while he may have experienced distress, disappointment or resentment at particular decisions taken, or activities implemented, by his employer or the self-insurer, that these were understandable reactions to his circumstances and should be kept in perspective in terms of their impact on his psychological well-being. The appellant's straightforward view was that if he did not experience pain, and if there had been no incapacity for work, none of consequential stressors would have emerged (T1-99):

"But at least part of the issue, can I suggest to you, Mr Ebsworth, that you were angry about was the attitude that Xtra, the insurer, and Glencore, your employer, were taking to your injury; you – you were angry about that, weren't you?‑‑‑Oh, I was a bit upset when they denied the claim, but – you know, I was pissed off, there's no doubt about that, but ‑ ‑ ‑

Because you – you felt – and correct me if I'm not paraphrasing or putting this properly – but you felt that you'd work for many years, you'd paid your taxes and you thought that it was appropriate that if you suffered an injury, that your employer and the insurer would look after you;  was that basically your view point?‑‑‑Oh, I've – well, as I said, owning a business and having employees years ago, it's – you know, you've got to have insurance for your workers, there's no doubt about that.  I – you know, I think that's the legislation.

And you felt if not an entitlement, you felt that given that you had sustained a work injury, that it was appropriate that you should be looked after by your employer or the insurer in terms of your welfare and your care as a result of that injury ‑ ‑ ‑?‑‑‑Oh ‑ ‑ ‑

‑ ‑ ‑ that was your attitude, wasn't it?‑‑‑Well, yeah.  I think every worker expects it.

And because that hadn't happened, you were in fact quite angry, correct?‑‑‑No, I was in pain.

 …

That anger was directed at the way that the claim had been managed by Xtra and by your employer's decisions, wasn't it?‑‑‑No, it was the pain, all right.  It was a – the pain was the problem.  I could have got a job anywhere if I didn’t hurt myself.  Okay. 

…

And I suggest to you that feeding into you suffering depression was these feelings that you had about your employer and about Xtra, the insurer, that they had basically done the wrong thing by you.  That was feeding in to causing your depression, sir?‑‑‑I'm not an insurance company.  I mean, that's just how they carry on, isn't it? "

 Medical Evidence

  1. [18]
    While evidence was not called from the appellant's treating general practitioners, the records of his attendances on the Noosa General Practice are in the evidence as Exhibit 19 (having been tendered by consent after the conclusion of the proceedings).
  1. [19]
    The appellant had reported increased levels of anxiety to his general practitioner on 10 June 2015. The anxiety was attributed to back pain, an inability to work, and the wait in securing approval for treatment.  The consultation did not however result in any referral or recommendation for mental health treatment. The medical records disclose that the appellant did not raise any concerns about his psychological well-being at subsequent general practitioner consultations on 16 July, 23 July, 3 August, 2 September and 21 October 2015.
  1. [20]
    However at a consultation on 26 October 2015, the appellant reported multiple symptoms of depression. He reported low mood, some insomnia, low appetite, anhedonia, agoraphobia, occasional tearfulness and a suicidal ideation. While the appellant reported that he had experienced low mood "essentially since start of episode of back pain", he said that his symptoms were "worse in recent weeks (2-3)". Dr Dean diagnosed probable depression and referred the appellant to a psychologist (Ms Korman).
  1. [21]
    Dr Dean, issued a workers' compensation certificate on 30 October 2015 in which he recorded a diagnosis of “right sciatic, Major Depressive Episode”. At the same time, he referred the appellant to Ms Korman, a psychologist. In his letter of referral to Ms Korman, Dr Dean said that the appellant's mood disorder had been triggered by "a back complaint and subsequent dispute with his employer's Work Place Insurer". The appellant subsequently attended on Ms Korman on 2 November 2015 and 9 November 2015.
  1. [22]
    Ms Korman's notes of these consultations, and a report that she sent to Dr Dean on 2 November 2015, are in the evidence as Exhibit 16. In her report to Dr Dean, Ms Korman said that the appellant was "feeling very overwhelmed and consumed with anger regarding his injury and work situation. It is affecting his relationship which exacerbates his anger". Ms Korman also said that she agreed with Dr Dean's diagnosis that the appellant was "displaying symptoms and behaviours suggestive of a major depressive illness". 
  1. [23]
    The notes of the 2 November 2015 consultation mention the following contributory factors or stressors:
  1. (i)
    "felt was done deliberately to him by a supervisor",
  1. (ii)
    "had financial pressure";
  1. (iii)
    "followed by someone";
  1. (iv)
    Worried about doing exercises for back without supervision;
  1. (v)
    Thinks about his difficult state;
  1. (vi)
    Not taking care of his activities of daily living;
  1. (vii)
    "feels overwhelmed and consumed by the pain & anger";
  1. (viii)
    Glencore's self-insurer, ExtraCare;
  1. (ix)
    "angry, suicidal thoughts, angry that he & his partner had to go through this because of his supervisor being mean".
  1. [24]
    Factors such as financial pressure, rumination about his circumstances, neglect of daily living activities, are relevant to his injury or the effects of his injury. Factors such as anger at his employer or anger at persons or decisions that made him go through a process, a concern over surveillance, no access to physiotherapist, and the activities of the self-insurer are matters not relevant to his employment.
  1. [25]
    The notes of the 9 November 2015 consultation mention the following contributory factors or stressors:
  1. (i)
    An attempt to trap the appellant by getting him to complete an assessment for the purpose of upgrading his machine operator ticket;
  1. (ii)
    Feelings of paranoia;
  1. (iii)
    Reluctant to go for a walk because of surveillance, hiding at home, terrified to go out;
  1. (iv)
    No joy in his life anymore;
  1. (v)
    In pain during consultation;
  1. (vi)
    Having to sell property, houses, and equipment.
  1. [26]
    Factors such as a life without joy, pain, and the requirement to sell assets are relevant to his injury or the effects of his injury. Factors such as a concern that his employer or self-insurer were trying to trap him, feeling of paranoia, and responses to surveillance, are matters not relevant to his employment.
  1. [27]
    It was Ms Korman's evidence in the proceedings that the appellant's depressed mood was caused by the pain and frustration that stopped him from doing what he wanted to do. She said that the appellant's anger at his treatment by the self-insurer or WorkCover exacerbated his condition. She agreed that the pain was the major contributing factor to the appellant's condition "because anger doesn't stop people from doing things, whereas the pain and his physical limitations stopped him from doing things, which was – was very difficult for him to take" (T3-6). 
  1. [28]
    Dr Yoxall, a psychologist, was asked to assess the appellant by the self-insurer after the appellant had lodged his claim for psychological injury secondary to his accepted physical injury. Dr Yoxall assessed the appellant on 27 November 2015 and prepared a report arising from the assessment on 22 December 2015 (Exhibit 14). Dr Yoxall concluded that the appellant had met the assessment criteria for a major depressive disorder. She also noted that the appellant had a history of anxiety and depression and said that while prior conditions had resolved, he may have a "predisposition to mood disorder and anxiety in periods of stress".
  1. [29]
    A reading of Dr Yoxall's report surfaces a number of factors which may have contributed to the appellant's stress or anxiety. It is understood that these factors were drawn by Dr Yoxall from the history provided to her by the appellant. These factors are summarised below:
  1. (i)
    While pain does reduce with medication, the appellant had not had a pain free day since 10 April 2015. At the time of assessment, his pain was rated between 4 to 6 out of 10 (where 0 means no pain). At the time of injury pain was rated 8 or 9 out of 10, however his pain diminished over the following three to four months. Pain had now plateaued at its current level;
  1. (ii)
    The appellant was distressed and surprised when his claim was rejected;
  1. (iii)
    The appellant felt that his employer did not believe that his injury was work-related;
  1. (iv)
    The appellant felt very let down;
  1. (v)
    In a context where the appellant wanted to get back to work in any capacity, he was upset that his employer did not respond to his doctor's advice that he was fit for suitable duties;
  1. (vi)
    The appellant said that the stress and strain of both the physical injury and the claims process had caused him substantial emotional distress;
  1. (vii)
    The appellant said that he was distressed by having to fight to get his claim accepted and by the decision to accept his claim for a short period of time;
  2. (viii)
    The appellant said that he was experiencing financial strain and could not meet his financial obligations;
  1. (ix)
    The appellant said that he feels that he has failed his partner;
  1. (x)
    The appellant said that he became worried about his future soon after the injury when his pain and discomfort did not resolve as he had expected it to;
  1. (xi)
    The appellant said that the experience with the workers' compensation claims process contributed to mounting worry about his ongoing health and future capacity to work and earn a living;
  1. (xii)
    The appellant said that he believed that the self-insurer had conducted surveillance on him and said that this made him feel anxious and distressed.
  1. [30]
    Dr Yoxall concluded that "a major significant contributing factor" to the appellant's condition was his "ongoing pain and his perceptions of his employer and his insurer". Her failure to distinguish between the stressors in terms of significance led the regulator to subsequently request Dr Yoxall to clarify or refine the conclusion arrived at following the November 2015 assessment of the appellant.
  1. [31]
    Dr Yoxall's clarification is recorded in a file note dated 10 December 2016 (Exhibit 15). The record in the first instances states that when Ms Yoxall assessed the appellant on 27 November 2015 at the request of the self-insurer, she considered that "there were a number of substantial contributing factors" to the development of the appellant's psychiatric condition. She said however that on the balance of probabilities she considered that the major significant contributing factor to the appellant's psychiatric condition was the appellant's "perception of his employer's actions and the systems and processes involved in the management of his workers' compensation claim".
  1. [32]
    At the request of the appellant's solicitors, the appellant was examined by Dr Markou, a psychiatrist, on 6 June 2016. Dr Markou diagnosed the appellant with a major depressive disorder and a pain disorder with physical and psychological factors relevant.  In his report (Exhibit 6), Dr Markou said that following the work injury on 10 April 2015 the appellant "suffered the onset of severe and what is now unremitting pain." Dr Markou said that it was in the context of this pain, that the appellant's depressive disorder has emerged and, as such, it was his conclusion that the work incident was the key event that related to the onset of his condition.
  1. [33]
    The regulator submitted that the evidence of Dr Yoxall was to be preferred to the evidence given by Dr Markou for the following reasons:
  1. (i)
    Dr Yoxall saw the appellant at a time proximate to his decompensation and was able to elicit an accurate history of the factors causing his distress. This gives her a substantial and significant advantage over Dr Markou's opinion given that he did not assess the appellant until 15 June 2016;
  1. (ii)
    By the time Dr Markou assessed the appellant, the regulator had declined to accept his application for compensation for a psychological injury secondary to his accepted physical injury; and
  1. (iii)
    Dr Markou did not consider or did not adequately consider in his report the impact on the appellant of stressors related to the workers' compensation claims process.
  1. [34]
    The regulator argued that Dr Markou's evidence in the proceedings established that his report was based on an incomplete history and a history that did not address all the factors that were required to be considered in the determination of the appeal. It was argued that Dr Markou's report was deficient in that it:
  1. (i)
    Did not explore with the appellant the possible impact of the compensation process on his condition;
  1. (ii)
    Did not discuss with the appellant whether his condition may have been attributed to distress arising from the claims process;
  1. (iii)
    Did not give adequate consideration to those parts of the reports of Ms Korman and Dr Yoxall which canvassed the appellant's anger or frustration with the claims process;
  1. (iv)
    Did not take any adequate history from the appellant about these matters, nor did the appellant provide such a history;
  1. (v)
    Confirmed that the appellant did not discuss the extent to which the workers' compensation and legal process contributed to his decompensation;
  1. (vi)
    Confirmed that the appellant did not provide the same history to him that he had provided to Ms Korman and Dr Yoxall;
  1. (vii)
    Confirmed that there was a heavy emphasis in the consultation on the effect of the pain, and its impact upon the appellant's daily life.
  1. [35]
    It was the regulator's position that in his evidence Dr Markou accepted, in effect, that an incomplete history provided to him meant that he was unable to adequately assess the extent to which the appellant's psychological disorder was caused by his anger and distress at the compensation process (T2-38):

"Because of the lack of history being provided to you by Mr Ebsworth about his level of anger, his level of distress about the compensation process, you were prevented from making any assessment as to the degree of contribution of those to his psychiatric injury?   I don't think it was because of the lack of history.  I think it was because that's what was presented at the time."

  1. [36]
    The regulator's criticisms of Dr Markou's evidence are valid. It is clear that Dr Markou did not take a complete history from the appellant during the assessment and significantly, for the purposes of this appeal, did not consider stressors arising from activities of the self-insurer and the employer. That these other stressors existed was clear from a reading of both Ms Korman's and Dr Yoxall's records or reports.

Submissions

  1. [37]
    The appellant submitted that the development of a psychiatric injury over time was consistent with the facts and the appellant's deteriorating medical prognosis. It would have been the appellant's initial expectation that he would recover from his injury and get back to work. As time progressed however and the recovery did not eventuate, the development of a psychiatric response could be expected and this in turn was compounded by financial distress resulting from a loss of employment.
  1. [38]
    It was argued that while the appellant may have been upset by his employer's treatment or may have been paranoid about surveillance, the development of his psychiatric condition preceded any of these factors and that the underlying cause of the condition was pain and incapacity for work. The effect of the appellant's submission, as I understood it, was that factors other than pain and incapacity should be regard as exacerbating stressors.
  1. [39]
    It was also argued that it was significant that the appellant continued to experience a psychiatric response and that the psychiatric condition had not resolved at the time of the hearing. The view was advanced that if the psychiatric condition had been caused by factors such as anger at the employer and not continuing pain, then the condition should have resolved by now. Put differently, any anger at the employer or self-insurer should have dissipated over time and could be removed from the list of current stressors. The enduring stressor remained the ongoing pain and incapacity and consequences arising therefrom.
  1. [40]
    However the regulator submitted that the key determination to be made was what caused the appellant's psychiatric injury to develop, not what factors might be perpetuating the existence of the already sustained psychiatric injury. The fact that the appellant's psychiatric injury subsisted in 2016 is not probative or relevant to the issues to be determined by the Commission.
  1. [41]
    The appellant submitted that grant of the appeal was supported by the following facts and considerations:
  1. (i)
    The appellant's incapacity for work and his financial problems derived from the physical injury;
  1. (ii)
    Ms Korman accepted that the most significant contributing factor to the appellant's depression was the pain followed by the anger;
  1. (iii)
    Dr Markou was strongly of the view that the appellant's depression was related to chronic pain and its consequences;
  1. (iv)
    Dr Yoxall acknowledged that it was a common occurrence for people to get depression as a consequence of chronic pain;
  1. (v)
    In her primary report Dr Yoxall identified chronic pain and financial stress caused by an incapacity to work as more important than any concerns that the appellant had in relation to his employer's conduct or the activities of the self-insurer;
  1. (vi)
    Dr Yoxall's supplementary report should be rejected;
  1. (vii)
    On any reasonable perspective, claims process factors or resentment of the employer could not be viewed as the cause of the appellant's condition, but only as factors which might have aggravated the condition.
  1. [42]
    The regulator advanced the view that the timing of the appellant's decompensation did not support a finding that pain was the major contributing factor. Any such finding would be inconsistent with the factual matrix prevailing at the time of decompensation. What the regulator saw happening during October and early November 2015 was an unexplained deterioration in the appellant's physical condition and an unexpected development in terms of the appellant's psychological condition. These factors created an inconsistency which questioned the reliability of the rationale underpinning the appellant's case. 
  1. [43]
    It was the regulator's submission that any proposition to the effect that the diagnosis of the appellant's depression was related to a deterioration in his physical condition and the onset of more intense pain or more constant pain, was not consistent with the facts as disclosed by the medical records of consultations between 3 August 2015 and 21 October 2015. Across this period the appellant's pain had diminished and stabilised, he was passed fit for suitable duties, and he was keen to get back to work. It was submitted that the evidence supports a finding that it was factors other than pain or any significant deterioration in physical condition which caused the appellant's decompensation. In this regard the coinciding and contributing factors were ongoing stressors related to the claims process and the actions of the employer.
  1. [44]
    These stressors included the rejection of the appellant's claim by the self-insurer, delays in the review process, resentment caused at the employer's belief that the injury was not work-related, the conduct by the self-insurer of surveillance activities, the appellant's paranoia about the surveillance and other covert activities engaged in by the self-insurer or employer, the refusal of the employer to provide light duties, and the decision of the self-insurer to limit compensation. It followed in the regulator's view that it was more probable than not that it was the appellant's dissatisfaction or anger related to these issues that caused his decompensation. 
  1. [45]
    The regulator also surmised that the inconsistency between the timing of the decompensation and the factual matrix suggested that the appellant was motivated to progress a claim of psychological injury when it became clear that his physical injury claim would only deliver about the equivalent of three months of weekly payments and medical benefits.
  1. [46]
    In terms of the operation of s 32(5)(c) of the Act, the appellant relied on the decision of Martin P in Mahaffey[1] in arguing that in cases of multiple stressors, the capturing of one stressor by s 32(5) does not necessary exclude the injury from s 32(1). Further, the application of a beneficial interpretation of s 32(5) should mean that the Commission would be reluctant to conclude that non-employment related factors should displace evidence favouring the appellant and which points to incapacity for work and matters consequential thereto as the root causes of the appellant's depression.
  1. [47]
    The regulator however submitted that if the evidence of Dr Yoxall was preferred to the evidence of Dr Markou and Ms Korman, it followed that the appellant's injury arose out of, or in the course of, action by the regulator or the self-insurer in connection with an application for compensation. Therefore the injury was excluded from s 32(1) of the Act by virtue of the operation of s 32(5)(c) of the Act. 

Onset of Psychological Condition

  1. [48]
    A finding about the timing of the onset of the appellant's depression is relevant to the determination to be made about the principal factors contributing to his disorder whether they be linked to the claims process, to pain and deprivation associated with an unresolved injury, or to resentment at positions taken by the employer.
  1. [49]
    The regulator's position was that a chronological review of the medical records of the Noosa Practice revealed a history which was not consistent with somebody having a major depressive disorder before October 2015. When a diagnosis of depression was entered in late October 2015 there had been a recognized reduction in the appellant's symptoms of pain and discomfort while at the same point in time other significant non-employment stressors remained unresolved.
  1. [50]
    While a formal diagnosis of depression was not entered until 26 October 2015, the appellant saw the diagnosis as the culmination of a deteriorating condition which had commenced on 10 June 2015 when increased levels of anxiety were reported to Dr Dean. A view that the appellant's condition had deteriorated over time was consistent with opinions expressed in the letter of referral that Dr Dean sent to Ms Korman on 30 October 2015. In the letter, Dr Dean stated that he was referring the appellant because of a "mood disorder" and noted that "unfortunately, Paul's mood has deteriorated and he is now displaying symptoms suggestive of a major depressive episode". His list of symptoms included "persisting low mood".
  1. [51]
    If the appellant could sustain a position that the onset of the psychological disorder should be traced back to 10 June 2015, it would follow that the injury was sustained prior to the emergence of a number of significant non-employment related stressors or stressors relating to the actions of the employer and the self-insurer. Such an outcome would support a conclusion that the actions of the employer and the self-insurer should be deemed aggravating or exacerbating factors, and that employment related factors must be regarded as the cause of, or the major significant contributing factor to, the injury.
  1. [52]
    The appellant's view about onset received prima facie support from Ms Korman, and Dr Markou who agreed that the 10 June 2015 entry in Dr Dean's notes could be consistent with the commencement or development of the appellant's psychiatric condition or part of a psychiatric response to his circumstances. However, in expressing this opinion, neither Ms Korman nor Dr Markou were apprised of the fact that the medical records did not contain any further mention of anxiety until 26 October 2015. 
  1. [53]
    Dr Yoxall on the other hand was apprised of the complete history and it was her opinion that the medical records were not consistent with the appellant having a major depressive disorder around 10 June 2015, and were indicative that the onset occurred at a later date. Consistent with Dr Yoxall's opinion, the regulator advanced the position that the relevant facts and circumstances supported a finding that the appellant's depressive condition developed or commenced some time in October 2015, and that it was primarily caused, not by pain, but by the appellant's anger and resentment at actions taken by his employer and by decisions of the self-insurer.
  1. [54]
    The appellant said that for the first month or two after he injured his back, his condition did not improve to any significant extent. He said that the pain levelled out after a couple of months, but that he was still in constant pain (T1-34). According to the history taken by Dr Yoxall on 27 November 2015, the appellant claimed that he had not had "a moment without pain since the injury in April 2015".
  1. [55]
    That the appellant's pain had become chronic should not be contested. However there are unresolved questions about degree, and the evidence is not consistent with a proposition that the appellant was experiencing severe unremitting pain at the time of his decompensation. This evidence includes the 31 July 2015 video footage, the record of consultation with Dr Dean on 3 August 2015, and the medical certificates confirming the appellant's fitness for work on suitable duties throughout August, September and October 2015.
  1. [56]
    While the appellant told Dr Dean on 26 October 2015 that he had experienced low mood since he first experienced back pain, and while he mentioned some anxiety in the consultation on 10 June 2015, he did not mention depressive symptoms on 21 October 2016 and there is no other evidence supporting a conclusion that the appellant was suffering depression before 26 October 2015. Further, to the extent that there was any evidence of anxiety being experienced in June 2015, the record of the consultation on 3 August 2015 did not suggest that there was a continuing problem.
  1. [57]
    It was Dr Yoxall's evidence in the proceedings (T3-49) that "anxiety is very much part of normal human function" and that "clearly, there's a difference between a symptom and a diagnosable disorder". In this regard she stated that anxiety is a "symptom unless it's stated it's diagnosable".  In my view a relatively sporadic reporting by the appellant of anxiety or low mood does not amount to a psychological injury or illness in circumstances where:
  1. (i)
    No treatment was prescribed or recommended following the 10 June 2015 consultation;
  1. (ii)
    There was no follow up consultation and no further reference was made in the medical records to psychological symptoms until 26 October 2015;
  1. (iii)
    The reference to anxiety on 10 June 2015 might be considered to be consistent with a prior history of reporting such symptoms, rather than with the forming of a new disorder; and
  1. (iv)
    In any event, it was not unexpected, and understandable, for the appellant to experience symptoms of anxiety arising from his circumstances.

Reasoning

  1. [58]
    It is not in dispute that the appellant's descent into psychological disorder was caused, or contributed to, by a number of different factors.  The appeal is to be decided by reference to a consideration of all the factors which, on the evidence, contributed to the development of the appellant's psychiatric disorder. These factors can be categorised as follows:
  1. (i)
    Whether, and to what extent, the appellant's psychiatric injury has been caused or contributed to by the effects/consequences of the lower back injury (employment factors);
  1. (ii)
    Whether, and to what extent, the appellant's psychiatric injury has been caused or contributed to by the effects/consequences of the appellant's frustration, anger, or unhappiness with decisions made or activities commenced by the self-insurer (claims process factors);
  1. (iii)
    Whether and to what extent the appellant's psychiatric injury has been caused or contributed to by the actions of his employer such as the appellant's sense of injustice or anger at his employer's failure to accept that his claim was work-related, or his employer's failure to offer him suitable duties (employer factors).
  1. [59]
    All factors are relevant to the determination to be made about what was the major significant contributing factor to the development of the appellant's psychological disorder. Was it employment related factors or was it non-employment related factors? There can only be one major significant contributing factor. The determination to be made about the application of s 32(5)(c) of the Act however requires only a consideration of the claims process factors.
  1. [60]
    Factors relating to employment principally relate to the psychological consequences flowing from the accepted injury including unresolved pain, an incapacity for work and matters consequential thereto including financial stress. However employment factors do not extend to decisions made by the employer or the self-insurer in the course of evaluating or processing his workers' compensation claim or decisions relating to rehabilitation or continuing employment.
  1. [61]
    The reporting by the appellant on 26 October 2015 of multiple symptoms of depression including low mood, insomnia, low appetite, anhedonia, social isolation, agoraphobia, and a suicidal ideation, was not foreshadowed by the medical evidence. A descent into depression however need not take a rational or incremental path, and it is not the unexpected nature of the decompensation that is the issue, but rather the issue of causation. The resolution of this issue includes the identification of those stressors which were most likely to have been relevant and influential at the time of decompensation.
  1. [62]
    In terms of the medical records of the Noosa General Practice, following a reporting of improved conditions on 3 August 2015, the appellant attended on his general practitioner on two occasions between then and 26 October 2015. On 2 September 2015 he completed a work capability assessment and, on the content of Dr Yoxall's report, he was issued with another medical certificate indicating a suitability for light duties at work until the end of October 2015. In terms of pain, the appellant reported significant pain arising from a two hour drive to the beach and ongoing pain. Despite reporting pain from driving, on 21 October 2015 the appellant also reported that his low back pain and right buttock pain had been exacerbated by a drive to Brisbane on 20 October 2015.
  1. [63]
    While there is evidence of unresolved pain and intermittent intensification of pain in particular circumstances, the medical records do not convey the impression that the appellant's overall physical condition had worsened since 3 August 2015. In terms of lifestyle considerations, the appellant reported that he took a two hour drive to the beach on 2 September 2015 and indicated that he had completed a trip to Brisbane on 20 October 2015. 
  1. [64]
    There were a number of unresolved non-employment related stressors potentially negatively impacting on the appellant around the time of his decompensation:
  1. (i)
    Commencing in July 2015, the appellant became aware that he was being subject to surveillance by the self-insurer, and he became suspicious about activities intended to "trap" him;
  1. (ii)
    In August 2015, the appellant's employer refused to allow him to resume work on light duties. Further, despite a satisfactory work assessment being completed by Dr Dean in early September 2015, and his fitness for work certificate extended until October, his employer continued to decline to return him to work on suitable duties;
  1. (iii)
    There was a significant delay in the resolution of the appellant's claim, a delay for which the appellant blamed his employer, at least in part. While the appellant knew in June 2015 that the self-insurer had rejected his claim for compensation, he did not become aware of the review decision until 9 October 2015;
  1. (iv)
    While the October 2015 review decision could have been expected to have had a positive impact on the appellant, any beneficial impact may have been lost when he became aware soon thereafter that the self-insurer had capped his entitlement to compensation at three months' pay pending a further medical review. This meant that while the appellant had been off work for six months, he had only received three months' pay.
  1. [65]
    While non-employment related stressors remained unresolved at October 2015, and while pain may have diminished, it is accepted that the appellant was not pain free, and he may have become increasingly worried about the failure of his pain to resolve and the consequences of an inability to work. The presence of significant competing stressors is not in question. The determination about what constituted the major significant contributing factor will be arrived at principally on a consideration of medical evidence including a consideration of the extent to which the medical evidence is consistent with the facts and circumstances prevailing at the time of the appellant's decompensation. 
  1. [66]
    In terms of the psychological and psychiatric evidence, I propose to set aside or discount the evidence of Dr Markou, and to focus on the evidence of Ms Korman and Dr Yoxall.  Dr Markou did not assess the appellant until June 2016 and it is apparent, on a reading of his report and on a review of his evidence in the proceedings, that the conclusions reached by him were based on an incomplete history.  It is clear that he did not give adequate consideration to all the stressors contributing to the appellant's psychiatric disorder.
  1. [67]
    Ms Korman concluded that the appellant's pain was the major contributing factor to the appellant's condition and that other stressors such as the appellant's anger at his treatment by the self-insurer should be treated as exacerbating factors. The effect however of Dr Yoxall's evidence was that if the major significant contributing factors identified by her in her report were to be ranked, she would rate the major significant contributing factor to be the appellant's perception of his employer's actions and the systems and processes involved in the management of his workers' compensation claim. Her evidence, in part, about the matters in contention is set out below (T3-40):

"During the assessment it was quite clear that he was quite embittered by the experience that he'd had and his perceptions of his employer and their role in addressing, responding to his – his injury, his reported injury, and he talked at length about his bitterness and anger and distress in relation to the worker's comp process.  So that, in conjunction with, also, several comments about feeling very much out of his depth and unable to cope with a system he didn't understand and anger regarding what he felt was unfair, and it seemed to be a substantial cloud under which he was – he was functioning."

  1. [68]
    Notwithstanding the lack of precision about causation in her primary report, I accept that Dr Yoxall's evidence in the proceedings is consistent with the summary and conclusions section of her primary report (Section 7) where she summarised her understanding of the history given to her by the appellant. In this section Dr Yoxall records that the appellant:
  1. (i)
    Described ongoing pain symptomology and reported that he had not had a moment without pain since his injury;
  1. (ii)
    Spoke extensively about his difficulties in coping with his pain and the impact that this has had on his sense of himself, his self-worth, his sense of purpose and his hope for the future;
  1. (iii)
    Spoke about his distress regarding what he perceived to be callous treatment of him by his employer and the self-insurer;
  1. (iv)
    Spoke about his distress about what he considered to be an unfair system that had penalised him;
  1. (v)
    Seemed particularly distressed, given a lifetime of hard work, that his expectations that the company would look after him if or when he was injured, had not been met.
  1. [69]
    The effect of the appellant's submission was that Dr Yoxall should be held to the opinions she expressed in her December 2015 report and that her supplementary opinion expressed almost a year later should be discounted. If this were done then Dr Yoxall's opinion would be seen to coincide with the opinion of Ms Korman.
  2. [70]
    I do not accept the approach advocated by the appellant. Prior to their evidence in the proceedings, and setting aside Dr Yoxall's second report, both Ms Korman and Dr Yoxall concluded that multiple factors caused or contributed to the appellant's disorder. Dr Yoxall referred to these factors in her 22 December 2015 report as ongoing pain and perceptions of the employer and the insurer, while it can be inferred from Ms Korman's consultation notes that a number of factors were contributing to the disorder. At this stage, neither psychologist had attempted to define what might be regarded as the major significant contributing factor and neither attempted to answer this question until giving evidence in the proceedings in Ms Korman's case, or until November 2016 in response to a request from the regulator, in Dr Yoxall's case.
  1. [71]
    In the circumstances, it is not valid for the appellant to propose that Dr Yoxall's supplementary views should be struck out, while Ms Korman's subsequent opinions should be allowed to stand. Therefore the appropriate course is to take into account all the evidence adduced in the proceedings including the initial reports and the subsequent evidence directed at the identification of the major significant contributing factor. It is then a matter for a determination to be made about which opinion is to be preferred. A consideration in this regard will be the extent to which the final opinions expressed in oral testimony are consistent with the records and reports written more contemporaneously.
  1. [72]
    I have decided to prefer the evidence of Dr Yoxall to the evidence of Ms Korman in particular respects. I have a reservation about Ms Korman's treatment of factors other than pain as simply exacerbating factors. If this opinion means that factors other than pain were not contributing factors to the formation of the appellant's disorder, I don't think that this conclusion is consistent with her own records.
  1. [73]
    In the first instance, in his letter of referral to Ms Korman dated 30 October 2015, Dr Dean told Ms Korman that the appellant's mood disorder "has been triggered by a back complaint and subsequent dispute with his employer's Work Place Insurer". Secondly, when Ms Korman provided Dr Dean with a report on her first consultation on 2 November 2015, she told Dr Dean that the appellant was "consumed with anger regarding his injury and work situation". Thirdly, entries in her notes of the 2 November 2015 consultation, include a belief on the appellant's part to the effect that his supervisor had acted maliciously to deny his workers' compensation claim, a belief that caused anger and suicidal thoughts.
  1. [74]
    Two entries in the notes of the 2 November 2015 referring to a "supervisor" illustrate the appellant's resentment of the position taken by his employer. The first mentioned entry suggests that the employer was acting unfairly or maliciously in opposing his compensation claim. It was Ms Korman's evidence in the proceedings that the "mean supervisor" reference alluded to the appellant's disappointment that his supervisor had not acknowledged that he had hurt his back. I infer from the entry and the evidence that the appellant was angry that his employer did not believe that his injury was work-related. The second entry clearly connects the appellant's anger and suicidal thoughts with the decisions taken by his employer in contesting his workers' compensation claim, and possibly with the self-insurer in rejecting his claim and forcing him to go through a process of review.
  1. [75]
    A further reservation about Ms Korman's opinion relates to her conclusion to rank pain as the major significant contributing factor based solely on the history provided to her by the appellant. It is not clear on the evidence how complete the history provided was, and to what extent Ms Korman was fully apprised of the pain continuum. There is no evidence that she was provided with the medical records of any of the appellant's consultations with Dr Dean or had received any objective evidence about the frequency or intensity of pain or the level of the appellant's incapacity, including his capacity to perform light duties. This position is contrasted with the position of Dr Yoxall where her report canvasses the progression of the appellant's pain in some detail (refer clauses 5.2 and 6.2 of her report dated 22 December 2015).
  1. [76]
    In the end result, I consider that Dr Yoxall's conclusion was better reasoned and her approach more consistent with the history provided. It was Dr Yoxall's evidence (Exhibit 15) that when she assessed the appellant on 27 November 2015, she considered that "there were a number of substantial contributing factors" to the development of the appellant's psychiatric condition. Ms Korman on the other hand preferred to give primacy to what she considered to be the root cause or underlying condition (ongoing pain). Given her approach, Ms Korman did not in any detailed manner examine all the stressors that were in play and form conclusions, having regard to the timing of onset, about whether some factors more than others were the most influential in the development of the appellant's psychological disorder.
  1. [77]
    I also accept that Ms Yoxall's conclusions are consistent with the factual matrix, which in terms of a consideration of stressors in play during October 2015, suggests on balance, that the non-employment stressors were the more significant stressors at the time of the appellant's decompensation.
  1. [78]
    While the appeal is finely balanced, my determination to prefer the evidence of Ms Yoxall to the evidence of Ms Korman and to accept that Ms Yoxall's opinion is consistent with the factual matrix, leads to a decision that the employment was not the major significant contributing factor to the development of the appellant's disorder.
  1. [79]
    If I were wrong in this conclusion, I think that it is inevitable that the appeal would fail because of the operation of s 32(5)(c) of the Act. In turning my attention to this subsection, a  number of matters require consideration:
  1. (i)
    Whether the "application for compensation" referred to in s 32(5)(c) of the Act refers to the application relating to the accepted physical injury, or to the subsequent application for a psychological injury;
  1. (ii)
    Whether the use of the disjunctive "or" in the subsection gives rise to a conclusion that only a temporal connection needs to exist between the injury and the activities of the self-insurer;
  1. (iii)
    If the subsection requires a determination to be made about causality, what approach is to be adopted in circumstances where the causes of the injury are multi-factorial;
  1. (iv)
    When the subsection refers to action taken by the insurer, in circumstances where the insurer is a self-insurer, are actions of the employer (who is the self-insurer), and which are directly related to the claims process, able to be considered.
  1. [80]
    The intent and purpose of the subsection is evident upon its reading. If a psychological or psychiatric injury arises out of, or in the course of, action taken by the regulator or the self-insurer, then the injury is not compensable. The not uncommon complication in the application of the s 32(5) exclusions, including in this appeal, emerges when causation is multi-factorial and the causative factors fall within both s 32(1) and s 32(5) of the Act.
  1. [81]
    In this matter which involves the lodgment of a psychological injury claim secondary to a physical injury claim, it is not self-evident upon a reading of the subsection whether the subsection is enlivened by reference to the psychological claim, or to the physical claim. I proceed on the basis that the application for compensation referred to in the subsection should be read to refer to either of the appellant's applications. The Explanatory Notes[2] associated with the introduction of the subsection on 27 November 1996 stated that the effect of the subsection was to exclude "psychiatric or psychological injuries that result from action being taken by WorkCover, or a self-insurer, in relation to the management of a workers' compensation claim including rejection of the claim or cessation of an entitlement". This reference supports a broader reading of the subsection.
  1. [82]
    In my view, for the intention and purpose of the subsection to be given effect, while the expression "in the course of" has typically been held to require a temporal connection, elements of causality are not excluded, and in this instance are necessary to give efficacy to the provision. In the case of claims involving the development of a psychological injury secondary to a physical injury, it would not be uncommon for the formation of a psychological injury to coincide with the processing of the physical injury claim. If only a temporal association was required between the psychological injury and the processing by the insurer and the regulator of the physical injury claim, then the subsection would have the effect of excluding many claims notwithstanding any consideration of employment related matters.
  1. [83]
    In terms of the multi-factorial nature of causality, the relevant authority is to be found in the reasoning of Martin J in Mahaffey.[3] While this decision was addressing the construction of s 32(5)(a) of the Act, and the interaction between s 32(5)(a) and s 32(1), certain principles enunciated in the decision are relevant to the determination of this appeal. The principles in question are derived from the following passages of his Honour's judgement:

"[52] In Davis v Blackwood I said:

'[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.'

[53] In Blackwood v Adams I agreed with what Hall P had said in Hochen, namely, that an enquiry as to whether or not unreasonable management action was the dominant cause of an injury was an erroneous approach.

[54] The history of the consideration given to s 32 (and its predecessor) is consistent with application of the principle cited in Bird v The Commonwealth, namely, "where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred". The construction favoured by this Court has been that a worker can suffer a compensable injury even if reasonable management action has had some causative effect.

…

[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 (citations omitted)."

  1. [84]
    In Mahaffey, four stressors were relied on to justify a finding that the worker's psychological injury was caused by unreasonable management action. One of the stressors had been found by the trial deputy president to involve an exercise of reasonable management action. A second stressor, to the extent that it did not involve replication with another stressor, was found to have not been made out. The actions underpinning a third stressor were found not to have existed. What was left in the end result was one stressor which had resulted in a finding of unreasonable management action and one stressor which resulted in a finding of reasonable management action.
  1. [85]
    It followed that the injury was partially caused by management action which was deemed reasonable and partially caused by management action which was deemed unreasonable. To the extent that the injury was caused by reasonable management action, the injury was excluded from s 32(1) of the Act, while to the extent that the injury was caused by unreasonable management action it fell within s 32(1) and was considered a factor of employment which contributed to the injury.  The trial was then resolved by the Deputy President assigning weight to the factors which contributed to the creation of the psychiatric disorder and ultimately concluding that particular management behaviour which was considered unreasonable, was the major significant contributing factor to the injury.
  1. [86]
    In the subject appeal, management action is not a factor in play. Rather, the contest is between contributing factors which fall within s 32(1) of the Act on the one hand, and within s 32(5)(c) of the Act on the other hand. The requirement under s 32(1) is to establish whether the employment was the major significant contributing factor to the injury. If it is, then the determination to be made is whether the exclusionary provisions in s 32(5)(c) are enlivened. I proceed to decide the appeal by reference to the following principles:
  1. (i)
    If the evidence supports a finding that the psychiatric disorder results from the employment being the major significant contributing factor, then it is necessary to examine the exclusionary provisions of s 32(5);
  1. (ii)
    It does not follow that an injury that is in any way touched by factors falling within s 32(5)(c) insulates the disorder from characterisation as an injury pursuant to s 32(1);
  1. (iii)
    The decision making process may involve the assignment of weight to the various factors which go to the creation or maintenance of a psychiatric disorder;
  1. (iv)
    Decision making will be aided by expert evidence which can assist in the assignment of weight;
  1. (v)
    The construction of s 32 to be favoured is that a worker can suffer a compensable injury even if s 32(5)(c) factors have some causative effect;
  1. (vi)
    While the expression "in the course of" has typically been held to require a temporal connection, elements of causality are not excluded, and in terms of s 32(5)(c) are necessary to give efficacy to the operation of the section;
  1. (vii)
    The approach is not to attempt to apply a formula directed at the identification of a dominant cause, but to weigh up the factors which were found on the evidence to have given rise to the disorder;
  1. (viii)
    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)(c) does not, on balance, displace the evidence in favour of the worker, then a finding in the workers favour must follow.
  1. [87]
    Whether the appellant's injury occurred in the course of action by the self-insurer in connection with the appellant's application for compensation, requires firstly the identification of the actions of the self-insurer that may have negatively impacted on the appellant's psychological well-being and secondly, a determination about the role that any such negative stressors have played in the development or onset of his depression, including a consideration of how important or significant these stressors were, both in isolation and also relative to other stressors not related to the actions of the self-insurer.
  1. [88]
    In this regard the regulator proposed that all that has to occur for s 32(5)(c) of the Act to apply, is for the Commission to be satisfied on the evidence that the relevant actions of the self-insurer have contributed to the appellant's decompensation. It was further submitted that there is no requirement under s 32(5)(c) for the actions of the self-insurer to be a significant contributing factor, or the major significant contributing factor to the development of the disorder.
  1. [89]
    In his referral of the appellant to Ms Korman, Dr Dean said that the appellant's mood disorder had been triggered by "a back complaint and subsequent dispute with his employer's Work Place Insurer". Ms Korman's notes of the 9 November 2015 consultation disclosed a level of paranoia on the part of the appellant at the surveillance conducted by the self-insurer and for other reasons:

"He was feeling a bit paranoid.  Reluctant to walk in case they take photos with his foot in motion and say he was jogging.  Hiding at home, terrified to go out.  No joy in his – his life anymore.  In pain at present during session.  Having to sell property, houses and equipment."

  1. [90]
    Ms Korman concluded that that the appellant's anger at his treatment by the self-insurer exacerbated his condition, while the list of contributing factors identified by Dr Yoxall in her report included the following factors:
  1. (i)
    The appellant was distressed and surprised when his claim was rejected;
  1. (ii)
    The appellant said that the stress and strain of both the physical injury and the claims process had caused him substantial emotional distress;
  1. (iii)
    The appellant said that he was distressed by having to fight to get his claim accepted and by the decision to accept his claim for a short period of time;
  1. (iv)
    The appellant said that the experience with the workers compensation claims process contributed to mounting worry about his ongoing health and future capacity to work and earn a living;
  1. (v)
    The appellant said that he believed that the self-insurer had conducted surveillance on him and said that this made him feel anxious and distressed.
  1. [91]
    In the summary section of her report the factors highlighted by Dr Yoxall included the following:
  1. (i)
    Spoke about his distress regarding what he perceived to be callous treatment of him by his employer and the self-insurer;
  1. (ii)
    Spoke about his distress about what he considered to be an unfair system that had penalised him;
  1. [92]
    In the circumstances of this case it is unnecessary for me to decide whether a distinction should be drawn between stressors related to the self-insurer and stressors relating to the employer.  There is sufficient in the medical records of Dr Dean, Ms Korman and Dr Yoxall to establish that action taken by the self-insurer, as distinct from the employer, constituted stressors of substance which would have made an important or significant contribution to the development of the appellant's disorder. This is not a case where stressors related to the actions of the self-insurer should defer to, or can be considered insufficient to displace, any finding in the appellant's favour under s 32 (1) of the Act.
  1. [93]
    While the action of the self-insurer did not exclusively cause the appellant's injury, the association between the actions of the self-insurer and the injury is sufficient to support a finding that the injury arose out of, or in the course of, action by the self-insurer in connection with the appellant's application for compensation. Therefore, had the appellant succeeded in satisfying the test laid down by s 32(1) of the Act, the appellant's injury would have been removed from s 32(1) by virtue of the operation of s 32(5)(c) of the Act.
  1. [94]
    The appeal is dismissed and the regulator's decision dated 10 May 2016 is confirmed. The matter of costs is reserved.  I order accordingly.

Footnotes

[1] Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010.

[2] Explanatory notes accompanying the WorkCover Queensland Bill 1996 introduced on 27 November 1996.

[3] Simon Blackwood (Workers' Compensation Regulator) v Samantha Mahaffey [2016] ICQ 010.

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Editorial Notes

  • Published Case Name:

    Paul Ebsworth v Workers' Compensation Regulator

  • Shortened Case Name:

    Ebsworth v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 28

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    05 Apr 2017

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
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
3 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Cite 3 - [2016] ICQ 10

Cases Citing

Case NameFull CitationFrequency
Dodd v Workers' Compensation Regulator [2024] QIRC 2734 citations
Weigel v Workers' Compensation Regulator [2019] QIRC 1622 citations
1

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