Kiesouw v Workers' Compensation Regulator
[2017] QIRC 64
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- Kiesouw v Workers' Compensation Regulator[2017] QIRC 64
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Kiesouw v Workers' Compensation Regulator[2017] QIRC 64
Kiesouw v Workers' Compensation Regulator[2017] QIRC 64
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kiesouw v Workers' Compensation Regulator [2017] QIRC 064 |
PARTIES: | Kiesouw, Daniel Franciscus (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2016/113 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 15 June 2017 |
HEARING DATE: | 13 June 2017 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Bloomfield |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychiatric/psychological injury – claimed injury over a period of time – whether injury date more readily identifiable – workers' compensation medical certificates referred to – date of decompensation established. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 131, s 258. Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106. |
APPEARANCES: | Mr D. Kiesouw, the Appellant. Mr J. Merrell, Counsel directly instructed by the Workers' Compensation Regulator, with Ms K. Bednarek. |
Decision
- [1]On 14 December 2015 WorkCover Queensland (WorkCover) rejected a Notice of Claim for Damages, filed on or around 6 October 2015 by Mr Daniel Kiesouw, in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Relevantly, Mr Kiesouw's Notice of Claim recorded that the date of his injury (a psychiatric or psychological injury) occurred over the period February 2012 to September 2013 and that the injury was, inter alia, as a result of being bullied and harassed on numerous occasions between those dates.
- [2]On 14 March 2016 Mr Kiesouw sought a review of WorkCover's decision to reject his Notice of Claim. By review decision dated 22 June 2016 the Workers' Compensation Regulator (the Regulator) confirmed the decision of WorkCover to reject the Notice of Claim in accordance with section 32(5) and section 258 of the Act.
- [3]By Notice of Appeal filed in the Commission on 6 July 2016 Mr Kiesouw appealed the review decision of the Regulator. Since that time, the appeal has been the subject of four conferences before two different Members of the Commission before being assigned to the Commission as presently constituted for hearing.
- [4]Because of difficulties I had in identifying the date of diagnosis of Mr Kiesouw's psychiatric or psychological injury in his Statement of Facts and Contentions filed on 16 January 2017, I Directed both Mr Kiesouw and the Regulator to file submissions (and copies of medical reports and the like) in relation to any diagnosis of the actual date of his decompensation. These submissions were received on 9 June 2017 and were the subject of a hearing on Tuesday 13 June 2017.
- [5]In the course of both his written and oral submissions on behalf of the Regulator Mr J. Merrell, of Counsel, argued that Mr Kiesouw decompensated on 26 January 2013, with such date being confirmed by the following Workers' Compensation Medical Certificates:
- Certificate issued by Dr John Wilson, of Surfers Day and Night Surgery, on 29 January 2013, which recorded that his diagnosis of Mr Kiesouw's condition was "anxiety depression" with the date of injury being 26 January 2013 and the stated cause being "verbal altercation by colleague on Saturday 26th Jan";
- Certificate issued by Dr Rosemary Knight, of Medibank Health Solutions Southport, on 31 January 2013 which recorded that her diagnosis of Mr Kiesouw's condition was "Acute stress reaction" with the date of injury being 26 January 2013 and the stated cause being "Harassment and abuse at work by colleague over past year";
- Certificate issued by Dr Knight on 7 February 2013, which repeated the above details;
- Certificate issued by Dr Knight on 22 February 2013, which (again) repeated the above details.
- [6]In his written submissions, Mr Kiesouw asserted that the date of his injury was 3 September 2013 for the following reasons:
"1. For an injury to be properly diagnosed it has to be diagnosed in my case by a clinical psychiatrist, the Regulator's diagnosis is based on a GP's opinion and therefore cannot stand up in a Court of Law, furthermore, Dr Knight's diagnosis isn't a diagnosis at all.
- Evidence will show that I was talked out of making a claim which is illegal, and that action is why we are going through the process we are currently going through.
- If I wasn't talked out of making a claim, I would have seen a psychiatrist as (I was referred to) by Dr Wilson and the outcome would have been very different."
- [7]In support of his submission that I should accept that the date of his decompensation was September 2013, Mr Kiesouw referred to a workers' compensation medical certificate issued to him by Dr Day Hong Ma, of the Surfers Day and Night Surgery, during that month at which time he was referred to Dr Ziukelis, a Psychiatrist. While not tendered during the proceedings, Mr Kiesouw subsequently provided both myself and the Regulator with a copy of a certificate from Dr Ma dated 17 September 2015. However, this certificate does not support Mr Kiesouw's assertion that his injury occurred in September 2013. Rather, it records that the stated date of injury (anxiety and adjustment disorder) is "Feb 2012", and that he was first seen at the practice for this injury in January 2012.
- [8]In response to the Regulator's submissions that the date of his decompensation was 26 January 2013, Mr Kiesouw submitted that neither Dr Wilson's nor Dr Knight's diagnosis could be considered because they were not qualified to make a psychological or psychiatric diagnosis. Further, he submitted that if Mr Kulk had not talked him out of making a workers' compensation claim on 29 January 2013 he would have visited the psychologist Dr Wilson referred him to and matters would have unfolded differently.
- [9]Mr Kiesouw's submissions to the effect that neither Dr Wilson's nor Dr Knight's diagnosis that he had a psychiatric/psychological condition can be considered is not supported by past case law on this matter. It is now well accepted that a workers' compensation claim involving a psychiatric or psychological condition can be accepted by WorkCover without the need to have a formal DSM IV diagnosis by a Psychiatrist or a Psychologist (see Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106).
- [10]Further, it is not relevant to my determination of the date of Mr Kiesouw's decompensation that Mr Kulk might have talked him out of lodging a workers' compensation claim on 29 January 2013. Rather, the fact that Mr Kiesouw asserts that Mr Kulk talked him out of lodging a claim is suggestive of the fact that he (Kiesouw) had suffered an injury and was proposing to lodge a claim in relation to it.
- [11]In the course of determining Mr Kiesouw's date of injury I have not only considered the available medical evidence (referred to above) but I have also considered Mr Kiesouw's Statement of Facts and Contentions filed on 17 January 2017. Relevantly, his Statement records events of concern commencing in March 2012 running all the way through until early September 2013.
- [12]Further, and importantly, both in his Statement of Facts and Contentions and oral submissions on 13 June 2017, Mr Kiesouw frequently made reference to his condition "being made worse" by a variety of events which occurred during the course of 2013.
- [13]Such statements, on top of the matters discussed above, are all suggestive of the fact that Mr Kiesouw's decompensation occurred on 26 January 2013 and that the events after that date about which he complains could not have contributed to the causation of his psychological or psychiatric condition, on the basis that such condition had already developed.
- [14]In light of the above considerations and observations I have determined that Mr Kiewsou's decompensation occurred on 26 January 2013. As such, any events which occurred after 26 January 2013 cannot be considered in the conduct of the present appeal proceedings.
- [15]If any events which occurred after 26 January 2013 aggravated Mr Kiesouw's psychiatric or psychological condition then those matters would need to be pursued via separate applications for workers' compensation or Notices of Claim for Damages, with Mr Kiesouw having the task of convincing WorkCover that they should accept and process such matters notwithstanding the provisions of section 131 of the Act.
- [16]In light of the above finding as to the date of his decompensation, Mr Kiesouw is hereby directed to prepare a Further Amended Statement of Facts and Contentions which more clearly describes the events and circumstances which he asserts caused, or contributed to the causation of, his psychiatric or psychological condition on 26 January 2013, and to file it in the Industrial Registry, and serve on the Regulator by 3:00pm Friday 26 June 2017.
- [17]I determine and Order accordingly.