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Langerak v Workers' Compensation Regulator[2019] QIRC 35

Langerak v Workers' Compensation Regulator[2019] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Langerak v Workers' Compensation Regulator [2019] QIRC 035

PARTIES:

Langerak, Jade Erin

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/12

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

22 February 2019

HEARING DATES:

20 to 24 August 2018

9 to 11 October 2018

28 November 2018 (Appellant's Submissions)

9 January 2019 (Respondent's Submissions)

MEMBER:

HEARD AT:

Thompson IC

Brisbane

ORDERS:

  1. The Appeal is upheld.
  1. The decision of the Regulator of 22 December 2016 is set aside.  The claim for workers' compensation is one for acceptance.
  1. The Regulator is to pay the appellant's costs of and incidental to the appeal.

CATCHWORDS:

WORKERS' COMPENSATION APPEAL AGAINST DECISION Decision of Workers' Compensation Regulator Appellant bears onus of proof Standard of proof Balance of probabilities Witness evidence Appellant was a "worker" - Appellant sustained a personal psychiatric injury - Injury arose out of or in the course of employment - Employment the major significant contributing factor - Management action neither reasonable or taken in a reasonable way - Appeal upheld.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 548A, s 549

WorkCover Queensland v Kehl [2002] 170 QGIG 93

APPEARANCES:

Mr D. Atkinson of Counsel, instructed by Murphy Schmidt Solicitors for the Appellant.

Mr C. Clark of Counsel, directly instructed by the Workers' Compensation Regulator, Respondent.

Reasons for Decision

  1. [1]
    A notice of appeal was lodged by Jade Langerak (appellant) with the Industrial Registrar on 23 January 2017 pursuant to ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (Regulator) dated 22 December 2016.
  1. [2]
    The decision of the Regulator was to confirm the decision of the Insurer (WorkCover) to reject the appellant's application for compensation in accordance with s 32 of the Act.

Relevant Legislation

  1. [3]
    The legislation pertinent to this appeal is as follows:

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. (5)
    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.

Examples of actions that may be reasonable management actions taken in a reasonable way

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.

Nature of Appeal

  1. [4]
    The appeal to the Commission are by way of a hearing de novo in which the onus of proof falls upon the appellant.

Standard of Proof

  1. [5]
    The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [6]
    In the course of the proceedings, evidence was provided by 11 witnesses.
  1. [7]
    The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. 

Witness Lists

  1. [8]
    The witnesses for the appellant were:
  • Jade Langerak (Langerak);
  • Dr Brad Matthews (Dr Matthews); and
  • Associate Professor Bruce Kahn (Dr Kahn).
  1. [9]
    The witnesses for the Regulator were:
  • Superintendent Glenn Horton (Horton);
  • Belinda Casey (Casey);
  • Senior Sergeant Allan Hussey (Hussey);
  • Inspector John Kranenburg (Kranenburg);
  • Dr Anand Gundabawady (Dr Gundabawady);
  • Acting Inspector Shane Bourke (Bourke);
  • Inspector Denis Fitzpatrick (Fitzpatrick); and
  • Sergeant Kaz Doyle (Doyle).  Note:  In 2014 Doyle's surname was Hutchinson.

Appellant

Langerak

  1. [10]
    Langerak, a Senior Constable of Police stationed at Petrie Police Station, graduated from the police academy on 12 December 2007, gave evidence initially relating to two setbacks of some significance in her career as a police officer.
  1. [11]
    In 2009 whilst stationed at Emerald she, in the early hours of the morning, arrested a woman who was intoxicated and urinating on the front step of the Emerald Police Station.  The woman had been in the company of a number of off duty police officers who were also intoxicated and sought to prevent the arrest from going ahead.  As a result of Langerak's actions she had been excluded from a particular friendship circle at the station including not being invited to the Christmas party and labelled a "dog".  In 2011 some two years after that incident whilst at the Toowoomba Police Station she recalled hearing a group of male officers talking about the Emerald incident.
  1. [12]
    The second setback occurred whilst she was stationed at the Mt Isa Police Station and her husband (at the time) was stationed at the Camooweal Police Station.  Her husband had engaged in a relationship in mid2013 and despite attempts to reconcile with her husband and work through those issues she eventually left their house in August 2013 "with a couple of pillows, some uniforms and my dog".  There was a period where she had nowhere to reside due to being evicted from police accommodation and rent prices in Mt Isa being high.  The financial arrangements with her husband were "extremely complicated" due to three rental properties and vehicles that had been purchased.  Her husband had been treating her "very badly", she was stressed about finances and not knowing how she would be able to manage the situation.  Langerak requested a transfer to Rockhampton, being that she had family and friend support however ended up being transferred to the Townsville Police Communication Centre (TPCC) officially starting work on 3 January 2014.
  1. [13]
    Langerak was excited to commence in the TPCC even though her preferred option was that of general duties officer.  From the outset she found the work challenging and compounding matters was that two particular sergeants in the room started to bully and ostracise her, particularly if she made a mistake.  Socially the TPCC was isolating for Langerak as she did not really fit in due to the age demographic of the other staff and she had difficulties in maintaining relationships with other people.
  1. [14]
    In about April 2014 a general practitioner gave her an urgent referral to Dr Kahn who immediately made arrangements for her admission to the Toowong Private Hospital which occurred on 15 April 2014 where she remained for a period of six weeks, being discharged on 27 May 2014.  Whilst in hospital she underwent electric shock treatment and participated in counselling.
  1. [15]
    Upon her release from hospital she felt that she would be able to do policing work but had concerns about a return to the TPCC.  The fact that her "boss" was unsupportive (as at no time whilst in hospital was contact made by the "boss") and that previously she had not learnt the work systems well enough to remember them.
  1. [16]
    Dr Matthews her treating psychiatrist at Toowong provided a letter (dated 27 May 2014) that seemed to include the words:

I would support Constable Langerak returning to general duties rather than her current substantive role in communications given her preference and mental health issues.

Dr Matthews further appeared to state:

I would be happy for her to return to general duties police work from 16 June 2014.

  1. [17]
    That correspondence was forwarded to Queensland Police Service (QPS) however she did not commence work on 16 June 2014 and was later informed the only position available was at the TPCC.  Langerak spoke at length with Dr Kahn and Dr Matthews about her concerns to return to a negative workplace that was toxic to her own health.
  1. [18]
    On 17 June 2014 Langerak forwarded an email to Bourke in which she stated:

I do have another medical certificate up until 27 June.  This is to try and get everything sorted.  I was only told yesterday that I would be returning to comms despite doctors advising I not return to that environment…

  1. [19]
    Following a consultation with Dr Matthews on 10 June 2014 he provided correspondence (dated 19 June 2014) to the QPS that confirmed she had done well with treatment and her mental state was now settled such that she was able to return to the workplace.  Dr Matthews further stated:

I understand that is the wish of Queensland Police Service for Ms Langerak to remain in Police Communications rather than return to General Duties.  I am of the opinion that to continue Ms Langerak in the Police Communications environment would be deleterious to her health and welfare, and can confirm that she was medially fit to return to General Duties policing at the time of her last consultation with myself, which was 10 June 2014.

I am also satisfied that, at the time of my last consultation with her she was suitable to have a police firearm and operate a police vehicle.

I would strongly support the return of Ms Langerak to General Duties policing and would be concerned about the adverse health effects of staying in Police Communications.

  1. [20]
    Dr Kahn in correspondence (dated 19 June 2014) to the QPS that stated:

She has recovered substantially, is now doing well and is highly motivated to return to work.

Her prior work in the communications area was a substantial contributing factor to the onset and severity of depression.  Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.

Outside of her work in the communications post she described, there are no psychiatric impediments of which I am aware to her being able to gradually return to work as a Front Line Officer in a safe, efficient and effective manner.  In a similar vein, I am not aware of clinically significant reasons as to why she would not be able to perform in the following capacities:

  • To make critical operational policing decisions under duress
  • To carry a firearm and make strategic and critical decisions in its use under duress
  • To drive a police vehicle at high speed under conditions of duress.
  1. [21]
    On 23 June 2014 Langerak's general practitioner (Dr Felicity Bailey) initiated correspondence that stated:

As per recommendations from Miss Langerak's treating psychiatrists, I equally recommend for her to return to general duties and also advise against her returning to communications as this was a contributing factor to her recent medical condition.  I see her fit to return to work as per the psychiatrists return to work plan.

  1. [22]
    By this time, for Langerak things were becoming dire, she was struggling financially due to not working and made the choice to return to her parent's house because there was no answer on when she would be returning to work.  On 7 July 2014 Lauren Phillips (Phillips) a QPS Injury Management Coordinator corresponded with Langerak, requiring the production of a medical certificate from 27 June 2014 as she had not returned to work.  Langerak responded in the following terms:

Hi Lauren,

I don't have a sick leave certificate from this date because I'm no longer sick and have been given approval to return to work.

Langerak forwarded an email to Casey (dated 8 July 2014) in which she stated the failure to return her to work was causing so much stress due to her dire financial situation.  Her doctors had advised against a return to the TPCC and she wanted to know if there was anywhere else she could go for the sake of getting back to work.

  1. [23]
    Casey by email (dated 11 July 2014 at 3.30 pm) advised Langerak that Acting Superintendent Fitzpatrick would be calling her before 4.00 pm in relation to her return to work.  Langerak's evidence was that Fitzpatrick called as scheduled, advising the QPS were not prepared to offer any rehabilitation at which point she asked why she was not being sent for an independent medical examination (IME).  The understanding she took from the call was she either went back to the TPCC or she did not have a career.  At no time from 11 July 2014 onwards was Langerak offered any rehabilitation or a return to work other than at the TPCC.
  1. [24]
    In an email (dated 14 July 2014) Casey informed Langerak she had met that morning with Fitzpatrick to discuss a "few ideas", the main issue being that since 2013/2014 changes to the QPS meant there were now very limited positions and opportunities for redeployment.  Langerak emailed Casey (dated 16 July 2014) about her non return to work, asking if the QPS was refusing to refer her elsewhere because another psychiatrist would likely make the same recommendations as the other psychiatrists.
  1. [25]
    Kranenburg (who was unknown to Langerak) sent an email (dated 24 July 2014) on behalf of the QPS seeking a suitable postal address for the purposes of sending her correspondence "via registered post".  From her experience it was her believe she was to be served with a "notice of suspicion" usually about a review of illness.  Also on 24 July 2014, Kranenburg sent a further email to Langerak (at 1.09 pm) in which it was stated:

The Assistant Commissioner is sending you a letter of review in relation to your medical condition.

Later on the same day Casey sent an email to Langerak at 3.10 pm in which she stated:

I am aware that you are going to receive a letter.  The content of the letter is to provide you with formal options in relation to your medical condition.

Your permanent restriction is a barrier in returning to work in your substantive position at Townsville Communication Centre.

If you provide me with your mailing address and I can organise for this to be sent to you.

Note:  The letter referred to by Casey was not formally tendered in the proceedings.

  1. [26]
    Langerak emailed an industrial officer at the Queensland Police Union of Employees on 24 July 2014 about her current circumstances in which she stated:

Today I was told by an inspector of pcc that I will be receiving a letter of review of my medical condition.

I am highly stressed over this and can't get any other information.

I am worried what it means.  Are they terminating my employment despite me desperately trying to get back to work.  And do I have options because I have been given clearance to return.

I have even told my Dr I will return to comms.

  1. [27]
    On or around 28 July 2014 she had decided to go back to the TPCC and had "begged" Dr Kahn to sign off on her return because she had no choice.  Dr Kahn had informed her he would not support a fulltime return to the TPCC but would accept a graduated work return plan.
  1. [28]
    There was a meeting held on 4 August 2014 at which Kranenburg and Casey attended by phone in Brisbane and Dr Kahn and Langerak by phone in Townsville and despite expressing a desire not to perform duties in communications, explaining the need to be closer to home, and concerns about bullying at the TPCC she agreed to a graduated return to work plan for the TPCC.
  1. [29]
    The return to the TPCC was worse than when she was there previously because everyone knew she had had mental health issues, she had to be retrained and she was humiliated by Sergeant Tania Child in front of others.  The suitable duties program required Langerak to "complete reorientation program for systems and complete training in computer systems to support return to work" which according to Langerak did not occur.  From a personal perspective she deteriorated to a stage where she prayed to leave this earth, was surviving on limited food, facing being divorced and also bankruptcy.
  1. [30]
    Eventually the QPS sent Langerak for an IME and she attended upon Dr Gundabawady on 4 November 2014 after which a report was provided to the QPS (dated 11 November 2014).
  1. [31]
    Casey emailed Langerak on 21 November 2014 stating:

The IME report has been received and it advises that at this time you are not able to work in a frontline policing role and to achieve this you need to undertake treatment for 4 8 months.  Further information has been requested from Dr Gundabawady around what type of treatment you should be seeking since you are already actively engaged in treatment with Dr Kahn.

I will also be asking Dr Gundabawady if your ability to work in Townsville Communications is a permanent restriction and to confirm if there is any expectation that after your 4 6 months of treatment if you are able to return to this location.  The report has advised that you are able to work, but not in a frontline capacity, I will be working with the command to see what arrangements can be made.

  1. [32]
    Following receipt of the email from Casey she remained on sick leave until contacted by Casey and Horton to be advised she was to commence at the Ross River Police Citizen Youth Club (PCYC) on 4 January 2015.  Langerak remained there until July 2015 when she won a position on merit, transferring to Brisbane.  The time spent at the PCYC had "brought her back to life" and the only leave taken whilst there was recreation leave.
  1. [33]
    In regards to stressors, Langerak identified work at the TPCC, finances and her marriage/husband, but nevertheless she was very happy and at the time she had been fully cleared and qualified to handle a police revolver.
  1. [34]
    Under crossexamination Langerak conceded that the first period of employment at the TPCC had not attracted a workers' compensation claim by her despite having made a number of such claims previously [Transcript p. 183].  On whether marital difficulties, financial difficulties etcetera were important factors in her psychiatric health throughout 2013 and 2014, she responded:

In all due respect, that at the time, yes, financial difficulty and marital problems were a problem.  However since then, they've escalated even worse and I'm not suffering psychological injury. [Transcript p. 184]

In respect of Langerak having visited Mt Isa on 12 November 2014 for purposes of seeing her then husband who was threatening to kill himself, she acknowledged the contents of her general practitioner's clinical notes for a consultation that occurred on 19 November 2014 following her return from Mt Isa and being stressed because her husband was going to kill himself.  The visit to Mt Isa did not cause her stress with the upcoming IME, said to be causing more stress [Transcript pp. 186 and 187].  She did not accept that the five or six weeks away from work was caused by that visit but there was stress and anxiety associated with her financial circumstances and an aunty had recently passed away [Transcript pp. 187 and 188].  In the period between December 2009 and January 2012 she was under a lengthy rehabilitation plan as a result of a psychological claim in respect of an arrest of a woman at Emerald, whilst at the same time working fulltime [Transcript p. 189].  In the period between December 2009 and January 2012 she had worked at six different police stations [Transcript p. 189].  There were difficulties with her marriage in 2012/2013 which had led to sleep difficulties due to stress [Transcript p. 190].  Her financial situation due to investment properties was also causing stress at that time [Transcript p. 191].  Langerak accepted that her personal situation including issues with her husband's partner was one of "pretty dire circumstances" [Transcript p. 192].  She accepted she had taken to Townsville, in January 2014, some "sort of emotional psychiatric baggage" from her marital circumstances [Transcript p. 193].

  1. [35]
    Langerak agreed that the following extract from Dr Kahn's correspondence (dated 19 June 2014) described what occurred in her first stint at the TPCC:

Her prior work in the communications area was a substantial contributing factor to the onset and severity of depression.  Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.  [Transcript p. 47]

  1. [36]
    At the conference on 4 August 2014 Langerak recalled that her position was for a return to general duties, had been bullied and isolated at the TPCC and that she had been apprehensive after being told (previously) she was going to receive a registered letter [Transcript p. 48].
  1. [37]
    On commencement in the TPCC on either 3 or 6 January 2014 the first three days were spent at a QCAD training course [Transcript p. 49].  Langerak denied that she looked down on civilian staff in the TPCC [Transcript p. 410].  Hussey had tried to help her attain senior constable status according to Langerak because he needed someone of that rank in the TPCC [Transcript p. 411].  The progression did not occur because she had not fulfilled the full year of service requirement which lead to the lodgement of grievance that was subsequently dismissed [Transcript p. 412].  On 11 March 2014 Langerak approached Doyle in a highly emotional state, telling her she was not coping because of home and work life [Transcript p. 412].  Doyle offered assistance through the police psychologist which she agreed to accept [Transcript p. 413].  In attending the TPCC on a later date she did not recall a conversation with Doyle about a number of stressors external to work over the past year but did recall saying she was finding work demotivating [Transcript p. 415].  Langerak accepted that a range of personal factors were causing her stress [Transcript p. 416] but not making it difficult to cope with her work duties [Transcript p. 417].
  1. [38]
    On 10 March 2014 she attended upon a general practitioner where the clinical notes reflected both personal and work circumstances as having contributed to her depressive symptoms at the time [Transcript pp. 419 to 420].  A further visit to a general practitioner on 17 March 2014 had Langerak assessed with severe major depression for factors that included social isolation, demotivating job, breaking up of relationship and "perhaps" physical activity [Transcript p. 422].  Langerak consulted other medical practitioners around that time prior to being admitted to the Toowong Hospital [Transcript p. 424].
  1. [39]
    On admission to the Toowong Hospital the issues identified for her condition were other than workrelated [Transcript p. 426]. with Langerak accepting an opinion of Dr Matthews that the actual stressors that had contributed to her two episodes of major depression were issues around the arrest of a friend of a police officer and the bullying that followed that incident plus her marital separation [Transcript p. 428].  Langerak had never denied those factors regarding her admission to the Toowong Hospital but also work was a contributing factor in her hospitalisation [Transcript pp. 429 to 430].  The period of time off work, subject of the appeal, was due to work issues that impacted on her mental health between August and November 2014 [Transcript p. 431].  Langerak had been hospitalised from 25 to 28 November 2014 following an attempt to kill herself as a consequence of personal stressors [Transcript p. 432] however she denied the time off work from November 2014 until January 2015 was because of issues relating to her expartner becoming engaged [Transcript p. 433].  On not being promoted to the rank of senior constable it was causing her financial stress in early 2014 [Transcript p. 441].
  1. [40]
    Langerak failed a personal performance agreement (PPA) test in Mt Isa in 2013 and in or around March 2014 (according to Phillips) there were concerns about her mental health and the QPS had removed her firearm, although she was unaware the firearm has been removed [Transcript p. 55].  In June 2014 she was attempting to return to work and at that time all leave entitlements were exhausted [Transcript p. 57].  Langerak in an email to Dr Kahn on 26 June 2014 expressed concerns about returning to the TPCC due to isolation and other reasons without mention of the toxic environment or being bullied [Transcript p. 510].  Langerak in 2009/2010 attended at a number of stations as part of a return to work plan including Toowoomba where she raised allegations of bullying and harassment [Transcript p. 512].  She confirmed that both Dr Matthews and Dr Kahn had been informed by her of reasons why she was reluctant to go to TPCC which included being bullied by two sergeants, being isolated and struggling with the system [Transcript p. 515].  Langerak accepted it was reasonable in June/July for Casey to make inquiries about positions available in the Townsville region for a return to work [Transcript p. 521].  She insisted that Fitzpatrick had told her the Service was not prepared to offer her rehabilitation at that time [Transcript p. 521].  On 9 July 2014 Casey confirmed she was making enquires to support a graduated return to work undertaking meaningful duties [Transcript p. 522].  Casey acknowledged the advice from Dr Kahn that it was not possible to return to the TPCC had complicated the return to work process [Transcript p. 523].  In reference to correspondence between Casey and herself on 16 July 2014 she accepted that financial issues were "raising their head" at that time and potentially having an impact upon her mental health [Transcript p. 525].
  1. [41]
    Langerak emailed Casey on 17 July 2014 which stated the following:

Hello, Belinda.  I’ve had enough of all this crap.  Just get Dr Kahn to say I can go back to comms and let’s be done with it.  I doubt he will do it, but we can try.  If not, send me to an independent doctor and I’ll lie about everything and the QPS will have the paper saying I can work in comms if they want.  So it will probably end up killing me eventually and another loss in my life, but I need to work because I have no income or support in any way.  Can’t wait until the 4th of August, because then I will have to surrender my animals to the RSPCA because I definitely have no way of feeding them. [Transcript p. 527]

  1. [42]
    Langerak conceded she had made the decision to return to TPCC by 17 July 2014 prior to knowledge of a registered letter from the QPS [Transcript p. 527].  On 28 July 2014 in an email to Casey she stated:

Hi Belinda.  Can we try and start the process of working with Dr Kahn, me to return to comms.  I understand this is my only option.  I'm prepared to do this. [Transcript p. 530]

By that time she had been given notice of the registered letter [Transcript p. 530] it had been explained to her by that stage the QPS were looking into her mental health in respect of continuing duty [Transcript p. 531].

  1. [43]
    A case conference was conducted by phone on 4 August 2014 which addressed issues relating to her graduated return to work [Transcript p. 532].  On her return to work, training that was to be arranged did not occur apart from sitting next to somebody for a couple of shifts [Transcript p. 534].  A number of propositions were put to Langerak about a conversation with Hussey on her return to work that she was unable to recall [Transcript pp. 533 and 534].  Upon her return to work she conceded Hussey had spoken to her about problems with her performance [Transcript p. 538].  Hussey had provided assistance to her with regards to a possible fraud matter involving her exhusband, on or around 1 September 2014 [Transcript p. 538] with Langerak's evidence being that as her officer in charge she was required to go through him [Transcript p. 539].  Sometime in midSeptember 2014 Langerak told Hussey that she was not able to get on with some people in the workplace [Transcript p. 539].  Langerak recalled a conference with Hussey and Doyle on 18 September 2014 about a quality assurance assessment of her work and a sample of 16 calls identified that 12 had not met the required standard [Transcript p. 540].  She claimed the issues arose because she did not understand the system [Transcript p. 540].
  1. [44]
    On 12 September 2014 she visited a doctor advising of tiredness being back at work, being in an unsatisfying role and ongoing significant financial stress [Transcript p. 541].  Casey at that time discussed the contents of the return to work program and Dr Kahn had not been keen to sign off on the plan [Transcript p. 542].  Around 30 October 2014 Langerak informed Casey that she was suicidal and also contacted Dr Kahn by email requiring a medical certificate to allow her to return to work [Transcript p. 543].  Dr Kahn informed Casey on 6 October 2014 that he was not aware of any psychiatric reason why she could not return to work in her current role [Transcript p. 545].  The QPS arranged for Dr Gundabawady to assess her on 4 November 2014 which she welcomed [Transcript p. 545].  On 20 November 2014 she informed Hussey she was going on sick leave and subsequently never returned to the TPCC [Transcript pp. 545 and 546].
  1. [45]
    In reexamination Langerak reiterated earlier evidence regarding not completing the training package on return to the TPCC in August 2014 with the training provided, limited to sitting beside other staff.  The training was not adequate.  Langerak recalled thinking in June 2014 that there was a common practice for people with mental health issues to have barriers put up by the QPS to manage them out.  The decision to send her back to the TPCC was, at the time, her only option having no alternative offer.
  1. [46]
    Counsel for the Regulator was granted leave by the Commission for Langerak to be recalled for the purposes of additional crossexamination on the discrete issue of a Facebook post attributed to her and having been posted on either the 22 or 23 November 2014.  Langerak accepted the content of the post that included references to her personal circumstances relating to marital issues.  She refused to concede that the post was evidence of a "pretty significant and stressful time" for her, rating it no higher than "upsetting" [Transcript p. 833].

Dr Matthews

  1. [47]
    Dr Matthews a psychiatrist first treated Langerak in April 2014 and more recently in May 2016.  Dr Matthews provided two reports that were tendered in the proceedings [Exhibits 60 and 61].  He treated Langerak during her stay at the Toowong Hospital between 15 April and 27 May 2017 following her referral from Dr Kahn for depressed mood and depressive features including suicidal thoughts.  On 27 May 2014 he authored correspondence "To whom it may concern, QPS Townsville" in which he stated:

Dear Sir/Madam, re:  Constable Jade Langerak, 21/9/82.  I have recently treated Constable Langerak in hospital for symptoms of a mood disorder.  She has improved with treatment.  I would be happy for her to return to general police duties police work from the 16th June 2014.  Her usual treating psychiatrist will be able to provide an updated report at this time regarding access to a serviceissue firearm.  I would support Constable Langerak returning to general duties rather than her current substantive role in communications, given her preference and mental health issues.

  1. [48]
    From a mental health perspective, given the potential for a relapse in somebody who had been unwell they should avoid some environments that are considered to be dangerous.
  1. [49]
    Dr Matthews generated further correspondence (dated 19 June 2014) to the QPS in which he stated:

I understand that it is the wish of the Queensland Police service for Ms Langerak to remain in Police Communications rather than returning to General Duties.  I am of the opinion that to continue Ms Langerak in the Police Communications environment would be deleterious to her health and welfare and can confirm that she was medially fit to return to General Duties policing at the time of her last consultation with myself, which was 10 June 2014.

I am also satisfied that at the time of my last consultation with her she was suitable to have a police firearm and operate a police vehicle.

  1. [50]
    The clinical concerns held by him at that time were about a return of Langerak to police communications which could have put her at risk of a very serious relapse.  He received no contact from the QPS regarding his correspondence.
  1. [51]
    Dr Matthews gave evidence of being contacted by WorkCover and of a report he furnished to WorkCover (dated 22 February 2016) in which he concluded that the stressors relating to her financial and marital situations were effectively static but the stress in the workplace appeared to have deteriorated.  The report stated:

This would support a clear deterioration on her mental state associated with the claimed aggravation arising from workplace factors, most notably her return to the PCC despite specialist medical opinion to the contrary.  I further note the improvement in her mental state when she was removed from this workplace environment.

The deterioration in context of stressors requires the need to look at stressors that are more acute than stressors that may be unchanging and in this case the acute stress seemed to be the lead up to and the return to the police communications centre.

  1. [52]
    Dr Matthews was taken to a report of Dr Gundabawady (dated 17 March 2015) and in particular the following commentary at pages 7 and 8:

Ms Langerak has had significant difficulties with her previous workplace at Townsville Police Communications Centre.  Please see the details in my previous report.  There had been a worsening of her anxiety and depressive symptoms while she was working at the communications centre.  The workplace stressors seem to have not resolved, it is likely there will be a relapse of her depressive and anxiety symptoms if she were to return to work at the Townsville Police Communications Centre.  These barriers seem to be permanent.

  1. [53]
    Dr Matthews found the commentary unsurprising as it was consistent with what he had projected earlier.
  1. [54]
    Under crossexamination Dr Matthews confirmed that when he first saw Langerak in 2014 her principle stressors were based on relationship and financial issues which he accepted could impact upon a person's ability to handle the routine tasks associated with work [Transcript p. 455].  In terms of there being no reference to workplace factors in the March/April period of 2014, it was the case they were not a significant issue at that point [Transcript p. 456].  Following Langerak's hospitalisation hostile text messages from her husband's lover became a precipitating factor in her mental health [Transcript p. 458].  In June 2014 there had been a great deal of discussion with Langerak about the location of the return to work [Transcript p. 458].  On being shown Dr Kahn's report (dated 19 June 2014) he conceded he had relied on a completely different history to Dr Kahn [Transcript p. 460].  Dr Matthews agreed there was a subtle distinction between Langerak not wanting to go back to the TPCC because she did not like the job and what had happened in the workplace from January to March 2014 [Transcript p. 460].  He accepted that Dr Kahn was in the best position to make the call on Langerak's return to work [Transcript p. 464].
  1. [55]
    In reexamination Dr Matthews opined that an ideal return to work for Langerak would have been a graduated return to work away from the TPCC with regular monitoring of her emotional state.

Dr Kahn

  1. [56]
    Dr Kahn is a consultant psychiatrist with 30 years' experience in generally elder persons and forensic psychiatry and had treated Langerak as a patient in April 2014.  He confirmed the content of the clinical note on that date as:

My work situation has contributed to the spiral I'm in.  Loved roadwork but couldn't afford to live [in] Mt Isa.  Wanted Rocky but got Townsville.  Got offered in communications radio.  I'm miserable, more isolated.  It's enough that it's like another part of my life taken away from me, more isolated than I've ever been.  I need my own space.  I had a job that I loved and now I'm in one I can't stand.  During [instinct] challenged, but husband's mistress emails me [indistinct] because Kayla's friend was there too.  Don't know what [indistinct] husband won't let go.  Kayla, mistress Kayla's friend been harassing me.  Kayla's friends harassing me.  Kayla sends provocative emails and patient opens.  Married six years. [Transcript p. 469]

  1. [57]
    He recalled Langerak providing information (in graphic detail) about her personal circumstances, of becoming increasingly despondent, unmotivated, frustrated and had contemplated suicide.  He arranged for her to attend the Toowong Hospital from 15 April to 27 May 2014 after which she returned to Townsville as his patient.  Dr Kahn forwarded correspondence (dated 23 June 2014) to the QPS (Phillips) in which he responded to a number of questions posed by the QPS stating, amongst other things:

Her prior work in the communications area was a substantial contributing factor to the onset and severity of depression.  Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.

Outside of her work in the communications post she described, there are no psychiatric impediments of which I am aware to her being able to gradually return to work as a Front Line Officer in a safe, efficient and effective manner.  In a similar vein, I am not aware of clinically significant reasons as to why she would not be able to perform in the following capacities:

  • To make critical operational policing decisions under duress
  • To carry a firearm and make strategic and critical decisions in its use under duress
  • To drive a police vehicle at high speed under conditions of duress.

With respect to your enquiry as to whether Ms Langerak has "any personality vulnerabilities", I am unaware of any clinically significant characterological deficiencies that would be likely to have an adverse or compromising effect on her capacities to function as a Front Line Officer.

  1. [58]
    Dr Kahn indicated his response was as a result of a view very strongly held in respect of Langerak having substantially recovered psychiatrically.  He supported a graduated return to work plan as a Front Line Police Officer and that she should not return to the TPCC because the people at that posting were very distressing to her.  Dr Kahn evidenced that he believed he had made clear she needed a different posting.
  1. [59]
    The QPS had requested he respond to four questions about Langerak's circumstances both medially and a return to work (on or about 1 July 2014).  One of the questions posed was if she could not return to Police Communications would that be a permanent medical restriction to which he responded:

At this juncture, it is my opinion on the balance of probabilities that the restriction is of an indefinite nature.

  1. [60]
    Further correspondence was generated by Dr Kahn (dated 8 July 2014) to the QPS (Casey) which advised Langerak was:

…now asymptomatic, enjoying an excellent recovery, aside from episodes of high anxiety when thinking that she may be required to work in Communications.

Dr Kahn then identified the work factors and assignments that had contributed to Langerak being unable to perform her duties at the TPCC.  These were:

  • The general environment triggered fear and anxiety responses when she was working there
  • The very thought of having to return to work in Communications triggers similar states of anxious, fearful distress
  • She assumed the position in a state of relative duress, needing to move away from Mt Isa and hadn't wanted to work in communications in the first place but "felt forced into it" due to her circumstances
  • She found the position distressfully isolating
  • She experienced some of her supervisors as "hostile"
  • She also experienced her OIC as unsupportive
  • At the time she was learing [sic] the QCAD system, she was becoming increasingly depressed (and, as a result, cognitively impaired).  This resulted in her now not being able to remember critical elements of the system.  She has commented, though, that she is now recovered and would be able to relearn the system, but it would take time and effort to do so all over again
  • Finally, replacing Jade in Communication would potentially serve as a risk factor towards her relapse.
  1. [61]
    A compounding factor would have been to place somebody in a distressing and upsetting environment by coercion into that environment despite medical opinion to the contrary.
  1. [62]
    Dr Kahn recalled his participation in a conference on 4 August 2014 which also involved Casey, an Inspector of Police, and Langerak which resulted in him signing off on a suitable duties program for Langerak to return to the TPCC.  In signing off he described it as being a matter of choosing the lesser of two evils.  It was his opinion she would have been sacked from her job, loose her career if he had not signed off.  He recalled making the point quite clearly that Langerak should not be returned to the TPCC.  Casey had told him there were no alternatives other than posting her at communications.
  1. [63]
    Under crossexamination Dr Kahn acknowledged that a note he had made after the 4 August 2014 meeting made no mention about Langerak's nonreturn to the TPCC because he "didn't have the time to write it" [Transcript p. 487].  He had corresponded with Langerak's general practitioner on 5 April 2014 and conceded that there was no record of the "quite diabolical description" given the work at the TPCC at that time [Transcript p. 490].  He reaffirmed his evidence about Langerak being sacked if she refused to return to communications [Transcript p. 491].  Dr Kahn formed the view that Casey's credibility was in doubt because of trying to return Langerak to work in a place that she detested and did not want to return to [Transcript p. 492].  He was not happy about the proposal to return her to the TPCC but had been willing to negotiate something in her best interests [Transcript p. 493].  He accepted that Langerak had agreed to go back to communications but had done so "quite reluctantly" [Transcript p. 495].  Upon her return to work he observed that Casey "on the surface" appeared to be genuinely interested in supporting the return to work [Transcript p. 496].  The attempted suicide by Langerak on 25 November 2014 was more likely to have been solely related to finding out her exhusband was getting engaged [Transcript p. 498].  Dr Kahn described as "clinical nonsense" that the suicide attempt was more influential on her mental health at the time than any workrelated factor [Transcript p. 499].
  1. [64]
    In reexamination he mentioned communications from Casey where she had euphemistically referred to personnel at the TPCC as having strong personalities which had the effect of acknowledging they were problematic for Langerak.

Regulator

Horton

  1. [65]
    Horton a Chief Superintendent of Police with the QPS was in 2013 the superintendent Commander of the QPS communications group which included (at the time) 19 centres statewide.  He was aware of the circumstance relating to Langerak's transfer from Mt Isa to the TPCC.  Langerak first came to his attention in late January early February 2014 regarding an application to progress to senior constable that required his consideration.  He advised she had failed to meet the criteria and he did not recommend the progression and later reaffirmed that decision.
  1. [66]
    Horton was aware of sick leave commenced in March 2014 by Langerak due to the absence being in excess of five days.  He later became aware of medical advice that she was suffering psychological injury and of the QPS starting a suitable duties planning to bring her back to the workplace.  Following her release from the Toowong Private Hospital he was informed that her treating psychiatrist had certified her fit to return to general duties, able to use a firearm and drive a police vehicle at speed.  Having regard for her history he had some concerns on suitability, ability for her to perform the role and that frontline exposure may cause her further psychological harm and potentially expose the community to some risk and for those reasons he was not satisfied she was in a position to undertake frontline operations because of her ongoing previous medical history and disclosures that she had made to him.  Ultimately she returned to the TPCC under a restricted duties arrangement (suitable duties plan).
  1. [67]
    Under crossexamination he evidenced that as the Superintendent he was able to recommend that a person be directed to undertake an IME but the authority sat with an Assistant Commissioner to authorise [Transcript p. 563].  In December 2014 he informed Langerak of an option to undertake a suitable duties program at the Ross River PCYC [Transcript p. 564].  The plan was for Langerak to return to the TPCC following the PCYC placement [Transcript p. 566].  Horton explained that having read Dr Gundabawady's report of the IME that formed part of the reasoning for sending her to the PCYC [Transcript p. 567].  Horton recalled having read two reports authored by Dr Gundabawady (dated 11 November and 1 December 2014) at the time they were published [Transcript p. 573].  The reports contained factors that assisted in making the decision to offer alternative duties because they were about her psychiatric condition and he was not a psychiatrist himself [Transcript p. 573].
  1. [68]
    The communication centres were often seen as attractive safeharbour positions for placement of staff who were struggling with frontline duties [Transcript p. 574].  When Langerak was placed at the PCYC she was an "additional" as there was no position which was an option rarely used because it interferes with the workforce management [Transcript p. 575].  On why the PCYC could not have been offered to have her back in June 2014, the evidence was "there was no position to place her in then" [Transcript p. 575].  In response to a question from the Commission as to why the placement could not have occurred in June 2014 Horton evidenced that it could have occurred at any workplace across the district but generally that was a last resort, something not commonly done [Transcript p. 576].
  1. [69]
    From the time of becoming aware in February 2014 of Langerak's condition there were concerns about her wellbeing and they were carried through until she left the communications group [Transcript pp. 575 and 576].  It was only after the IME that the placement at the PCYC was looked at [Transcript p. 577].  In early 2014 he had seen advice provided by Langerak's treating specialist [Transcript p. 580].  As far back as June 2014 he was requesting further and better information via injury management about her condition including clarification from her specialist however there were not enough "red flags" until November 2014 to warrant the expense of an IME [Transcript p. 581].
  1. [70]
    Horton recalled discussion around correspondence generated by Dr Matthews in May 2014 where he supported her return to general duties from 16 June 2014 [Transcript p. 583].  Whilst Specialists may offer advice about the suitability to carry firearms ultimately it is senior police who make such decisions [Transcript p. 584].  The correspondence had raised concerns about Langerak's mental health and returning to the TPCC which according to the witness raised flags that went through from February to December 2015 [Transcript p. 584] with him never reaching a level of satisfaction himself about all the advice he was receiving [Transcript p. 585].  On correspondence from Dr Kahn (dated 19 June 2014) he conceded he would have been briefed on the content that included references to the TPCC having been a significant contributing factor to Langerak's condition and that work assignment was likely to remain a risk factor with his response to question the injury management support officer on what were the specific factors in the workplace that were causing the stressors.  There was a continuing theme of questions to management over a three to four month period [Transcript p. 586].  Horton accepted that correspondence from Dr Kahn (dated 8 July 2014) stated it would be a dangerous compromise for her to go back to communications and she was capable of frontline duties [Transcript p. 587].  Dr Matthew's generated further correspondence on 19 June 2014 which Horton acknowledged he would have been briefed on "the general theme of the beliefs of the doctor".  The letter contained references to Langerak being suitable to carry a firearm, and operate a police vehicle but it would be deleterious to her health and welfare to return her to the TPCC [Transcript p. 589].  Horton evidenced that options were explored around Townsville for placing Langerak besides the TPCC [Transcript p. 593] but as at 11 July 2014 he did not think there were other potential placements being contemplated [Transcript p. 594].  Casey was asked to talk to Dr Kahn at the conference about the working environment at the TPCC and to get advice from him on whether they could put something together [Transcript p. 594].  The Case Conference was designed to get advice about Langerak's ability to work at the TPCC [Transcript p. 595].  Dr Kahn agreed to a plan for the TPCC [Transcript p. 595].  In 2014 he believed that they could get Langerak back to the TPCC under a suitable duties plan but by 2014 he was aware that options of medical retirement could be on the table in the future [Transcript p. 5100].  In the period between 11 July and 4 August 2014 there was always consideration of placing Langerak elsewhere however frontline duties were not considered due to her psychiatric condition [Transcript p. 5104].  On the psychiatric opinions in place in June/July 2014 that suggested Langerak was better suited for frontline duties rather than at the TPCC, Horton disagreed with the advice which had its basis on what Langerak was telling them and in his case he had a full history of her employment to assist him in reaching his position [Transcript p. 5105].
  1. [71]
    In reexamination the evidence was that Langerak's fundamental position was a return to frontline duties.  In the period between July and the case conference in August 2014 he believed that Langerak had given an indication she may have been able to return to the TPCC.

Casey

  1. [72]
    Casey a support services officer for the QPS previously held the position of injury management officer which required her to support and assist injured members and staff through physical and psychological injury, back to work, career transition, or a medical retirement process.  Her role included acting as a gobetween with the injured worker and management.
  1. [73]
    Casey first spoke to Langerak after her release from the Toowong Hospital in May 2014 but acknowledged that a colleague (Phillips) had acted in her role whilst she took a period of leave.  On 24 June 2014 she wrote to Dr Kahn seeking a response to the following propositions:
  • Please provide currently symptomology associate with current diagnosis.
  • In your report you reference that Police Communications area was a substantial contributing factor to Jade's current diagnosis.  Please advise what type of work factors and or work assignments contributed to Jade not being able to perform her duties in Police Communications.  E.g. please nominate factors/work assignments such as peers, environmental, exposure to critical policing events, vicarious trauma, calls types.  Etc.
  • If Jade cannot return to Police Communications is this a permanent medical restriction?
  • What is the likelihood that exposure to frontline traumatic and critical events undertaken as part of a frontline police officer will aggravate or exacerbate jade's current condition?

The responses arose from Dr Kahn's report of 19 June 2014.  Dr Kahn proved difficult to communicate with and often she required Langerak's assistance in communications with him.

  1. [74]
    Information on Langerak's case management file had indicated a previous history of psychological injury between February 2009 to February 2012 and the option of returning to operational duties because of a very fragile personal life was not viable as the risk could not be controlled.  Casey found Dr Kahn's opinion on the return to work options conflicting.  Casey later became aware that Dr Matthews had expressed a similar view point but Casey kept in contact with Dr Kahn because he had the current and most relevant knowledge.
  1. [75]
    Langerak disclosed to Casey that she had gone through a traumatic marriage breakup that had impacted on her emotionally and it was Casey's understanding this had triggered her mental health decompensation  Additionally she was struggling financially bearing the burden of debt from the marriage.  Langerak had early in the peace offered that she would do almost anything, frontline, front counter duties or schoolbased police program and after having gone through the regional chain of command they were unable to provide adequate supervision or meaningful duties.  On 9 July 2014 Casey suggested to Langerak that if ultimately she was unable to return to her substantive position at the TPCC she should put in a TAC application, attaching an application form.
  1. [76]
    The QPS had been prepared to offer Langerak rehabilitation with Casey working very hard in the background but there had been difficulties due to governmental changes in 2013/2014 where there was more scrutiny on position numbers than in previous years.  The advice of Dr Kahn that she could not return to the TPCC had complicated the return to work process.  Casey sought to arrange a case conference as soon as possible with Dr Kahn to see if there was anyway Langerak, with his support, could return to the TPCC.
  1. [77]
    On 17 July 2014 Langerak sent her an email that stated:

Just get Dr Kahn to say I can go back to comms and let’s be done with it.  I doubt he’ll do it, but if we can try.  If not, send me to an independent doctor, and I’ll lie about everything, and the QPS, that the paper is saying I can work in comms, that they want.

Well, it will probably end of killing me eventually, and another loss in my life.  But I need to work, because I have no income or support in any way.  I can’t wait until the 4th of August, because I have to surrender my animals to the RSPCA, as I will definitely have no way of feeding them. [Transcript p. 634]

This was the first indication from Langerak that she was prepared to go back to the TPCC.  Casey upon reading the email thought that Langerak was in a highly emotive state and when questioned by the Commission that it appeared to be someone desperate who was willing to lie to go back to a place against medical opinion, Casey accepted that assessment.

  1. [78]
    On 22 July 2014 Casey received an email from Langerak advising that she had spoken to Hussey which made her anxious and she wanted to do her "rehab stint" somewhere else as going back to "comms" was causing too much anxiety and worry.  Also in the email was a reference to "one of the big factors" when she got sick had been being isolated in "comms".  Casey stated at that point of time she believed Langerak had been ill because of personal issues and she had no awareness of any previous workplace issues.  In another email on the same day Langerak stated amongst other things "I accept I'm going back to comms.  I just need a little bit of help getting back there, so that I don't fail like I did last time".  On 24 July 2014 Casey made a file note following a conversation with Langerak who advised she was stressed and anxious as a consequence of her marriage and she needed suitable strategies to deal with the stress.  Later that same day Casey sent the following email to Langerak:

I am aware that you are going to receive a letter.  The content of this letter is to provide you with formal options in relation to your medical condition.

Your permanent restriction is a barrier in returning to work in your substantive position at Townsville Communication Centre.

If you provide me with your mailing address and I can organise for this to be sent to you.

Thank you.

If you would like to talk to me about it, please feel free to give me a call.

  1. [79]
    Casey along with Kranenburg from the QPS participated in a telephone conference on 4 August 2014 with Dr Kahn and Langerak to discuss a return to work and suitable duties plan which was agreed.  Neither Dr Kahn nor Langerak expressed any opinion that she should not go back to TPCC.  Following the conference Casey sent an email to Dr Kahn that confirmed:
  • approval from Horton to extend return to work plan to eight weeks;
  • Casey will have weekly contact with Langerak;
  • final two weeks will provide an opportunity for Langerak to work some later shifts; and
  • Casey was open to changing the plan based on Dr Kahn's guidance.

At her request she had Dr Kahn provide the following correspondence (dated 7 August 2014):

I am writing at the request and on behalf of Ms Langerak, who is a patient under my medical care.

She is free to return to work according to the graduated return to work plan that we recently agreed upon with the Queensland Police Service.

Thank you for taking this information under advisement and for helping with Ms Langerak's treatment plan.  Please don't hesitate to let me know if you have any questions or concerns, need any further information or if there is something else I might need to do in this regard.

  1. [80]
    The return to work progressed well until there were "some issues with some colleagues" which Casey asked her to address with Hussey.  Casey was unable to recall any mention of family/personal issues at that time.   On 3 September 2014 Langerak advised Casey of personality issues with a sergeant and a communications room operator with the sergeant being overbearing.  Casey encouraged her to talk to Hussey.  Up until 22 September 2014 Langerak had been progressing with her return to work and on that day sought leave due to a family illness.  On 3 October 2014 Casey received a phone call from her manager Shauna McGarry (McGarry) about Langerak feeling suicidal which prompted her to contact Dr Kahn who contacted Casey on 7 October 2014 by email stating:

I’m writing at the request of and on behalf of Jade Langerak, who’s keen to return to work.  I’m not aware of any psychiatric reason would materially interfere with her capacity to work in her current role.  So please consider this as my statement.  Psychiatrically cleared to work as part of the treatment plan and returntoduties plan.  [Transcript p. 651]

  1. [81]
    On 8 October 2014 Langerak informed Casey that she had been suffering from depression since the bullying incident in Emerald and had still managed to perform her on road duties.  An email the previous day from Langerak to Casey informed:

I worked out what the problem is.  It’s not comms as such.  It is the isolation of being here in Townsville on my own.  I’m struggling with depression but struggling on my own, with my family so far away.  I cry every day, not because of work but because I’m just so lonely … [Transcript p. 652]

  1. [82]
    Casey telephoned Langerak on 9 October 2014 to advise she would be sent for an IME on 4 November 2014 due to the lack of progress and with her having been suicidal.
  1. [83]
    Prior to 4 November 2014 Casey had seen no need to consider sending Langerak for an IME because they had been able to proceed to a suitable duties program.
  1. [84]
    Under crossexamination Casey accepted her injury management role was that of a liaison person [Transcript p. 664] that works within a case management team, that includes an Assistant Commissioner, Inspector, Psychologist and (often) her manager [Transcript p. 665].  QPS policy was to return an injured worker back into fulltime work particularly after long absences, building their work fitness in consultation with relevant medical practitioners [Transcript p. 666].  Considerations included not exacerbating any underlying conditions and having them carry out meaningful duties [Transcript p. 667].  In terms of returning Langerak to work it was necessary to work with senior officers within the region and also Horton who had responsibility for communication centres across the State [Transcript p. 668].  The intent was to return Langerak to her substantive position and also seeking alternate positions through the chain of command for her rehabilitation [Transcript p. 669].  The Townsville district has multiple business units although Casey was not personally aware of the structure [Transcript p. 669].  At the time of her dealings with Langerak she had not been shown reports from Dr Matthews [Transcript p. 670] but had seen a report from Dr Kahn which had been addressed to Phillips (who was backfilling for her at the time) [Transcript p. 671].  Casey confirmed the QPS had requested a report from Dr Kahn as her treating specialist [Transcript p. 671].  The report (dated 19 June 2014) indicated Langerak was highly motivated to return to work and supported a return to operational policing duties [Transcript pp. 671 and 672].  The report also provided an analysis of a return to the TPCC as being a risk factor [Transcript p. 672].  Casey indicated that the opinion of Dr Kahn about the TPCC did not make sense when the length of service there by Langerak was considered [Transcript p. 673].  Casey requested assistance from the Northern Region to find alternative duties [Transcript p. 674].
  1. [85]
    There appeared to be conflict in Dr Kahn's report about her ability to return to front line policing but not communications [Transcript p. 674].  Dr Kahn informed Casey in correspondence (dated 8 July 2014) that in respect of Langerak's duties at the TPCC "the general environment triggered fear and anxiety responses when she was working there" and that she found it "distressfully isolating" and that some of her superiors were "hostile" [Transcript p. 677].  Efforts were made across the Northern Region to find an alternate return to work place other than the TPCC but there were unsuccessful [Transcript p. 677].  The case management team were sceptical about Dr Kahn's opinions on Langerak's return to work [Transcript p. 679].  Casey was aware by 13 July 2014 that Langerak was prepared to see an independent psychiatrist however Casey never responded to the request [Transcript p. 680].  Langerak in an email to Casey on 11 July 2014:

I can't risk a relapse.  I can't go back to being that sick again.  It's the worst experience on top of an already emotional 18 months.  I have been given a clearance to return to work, just not in Communications.  I am prepared to work in any other area, and said this to Superintendent Fitzpatrick, and I'm desperate to get back to work and need to.  [Transcript p. 681]

  1. [86]
    Casey on consideration of the email felt that Langerak had a lot of personal issues going on in the background [Transcript p. 683].  On the proposition that an email sent to Dr Kahn by Casey about Langerak expressing a preference to go back to the TPCC being a "bit disingenuous" the witness conceded it was "not a great email" [Transcript p. 683].  Casey agreed that she had made a considerable effort to find an alternate return to work option however at the end of the day Langerak was only offered the TPCC [Transcript p. 685].
  1. [87]
    On 24 July 2014 there was a suggestion about correspondence from the QPS to Langerak that may involve options that including medical retirement as a result of her medical condition [Transcript p. 685].  Part of the suitable duties plan regarding Langerak's return to the TPCC involved training which Hussey indicated was occurring [Transcript p. 688].  Casey was aware Langerak was "very anxious" about what would occur on her return to the TPCC [Transcript p. 688].  Casey was unaware why the case management team had not agreed for Langerak to have an IME [Transcript p. 689].  Casey was unable to point to any inquiries after 11 July 2014 about an alternate position for Langerak's return to work [Transcript p. 691].  Based on Langerak's previous diagnosis and the issues she had been dealing with, the demands of a frontline police officer, her return to work should be nonoperational according to the case management team [Transcript p. 691].  Casey was aware as at 8 July 2014 that Langerak's dire financial situation required her to return to work [Transcript p. 693].  The placement of Langerak at the PCYC in January 2015 was done as a result of an independent examination by Dr Gundabawady [Transcript p. 698] and was a surplus position [Transcript p. 699].  The surplus option as part of a suitable duties plan had been around for some time [Transcript p. 699].  The decision to place her at the PCYC would have been made by the case management team [Transcript p. 6100].  Casey conceded that a conclusion could be drawn that the sum total of inquires made of the Police Service for return to work programs for Langerak were between 8 and 11 July 2014 [Transcript p. 6103].
  1. [88]
    Casey had a meeting with Acting Commissioner Vanderbilt on 11 July 2014 after having been advised by Glenn Kachel (Kachel) there was no alternate position available for Langerak but could not recall the specifics of the meeting [Transcript p. 74].  Also on the same date she emailed Langerak to advise that Fitzpatrick would be calling her before 4.00 pm [Transcript p. 74].  Casey had not spoken to Fitzpatrick, giving evidence that it would have been Vanderbilt who informed her of Fitzpatrick's intentions to call Langerak [Transcript p. 76] but she had no knowledge of what Fitzpatrick would be saying to Langerak [Transcript p. 77].  Casey recalled that on 16 June 2014 Langerak informed Hussey that she was prepared to have an IME [Transcript p. 78].  Casey was unable to produce any record of requests or enquiries made between 9 July 2014 and 11 July 2014 for an alternate position for Langerak's to return to work [Transcript p. 79].  After being referred to Dr Gundabawady for an IME in November 2014 Langerak was offered an alternate position at the PCYC in January 2015 [Transcript p. 79].
  1. [89]
    On Langerak's marital problems it was Casey's understanding that such problems had been ongoing issues in 2013, 2014 and 2015 [Transcript p. 710].  At the time of Langerak's commencement at the PCYC the independent medical report indicated that she needed additional treatment before returning to frontline operational duties and it was Casey's belief that she had performed well at the PCYC [Transcript p. 710].  Casey had put in an email that "correspondence with Jade has indicated that she has come to terms with a return to work at Townsville" which Casey accepted was her interpretation that Langerak accepted such a return to the TPCC was in effect, inevitable [Transcript pp. 710 and 711].  Casey was aware that at 24 July 2014 "termination would be her [Langerak's] worst nightmare" [Transcript p. 712].  According to Casey an option not to return to the TPCC was available to Langerak but that possibly would have been the catalyst for an IME [Transcript pp. 713 and 714].  The IME would have included consideration of her suitability to continue as a police officer [Transcript p. 714].  On Dr Kahn's opinion on her suitability to return to the TPCC, Casey did not accept that was an independent report [Transcript p. 714].  Casey conceded in her dealings with Langerak she had kept very careful notes of those conferences which were comprehensive and exhaustive but she had made no notes of the return to work meeting which involved Kranenburg, Dr Kahn, Langerak and herself [Transcript p. 716].  Casey could not recall Dr Kahn saying that Langerak should not be returned to the TPCC [Transcript p. 716].  Casey accepted that two reports from Dr Kahn (dated 19 June 2014 and 8 July 2014) unequivocally did not favour her return to the TPCC [Transcript p. 717].  At the time of the return to work conference involving Dr Kahn there was "no termination or highway option" [Transcript p. 718].  On 3 September 2014 she was involved in a "long phone call" with Langerak who raised that she was having problems with other workers at the TPCC who were the reason she had not wanted to return to the TPCC [Transcript pp. 720 and 721].
  1. [90]
    In reexamination Casey confirmed that she had sought to secure a position in Bundaberg for Langerak.  Casey recalled on 3 October 2014 being advised that Langerak had been making threats or potential threats of suicide.  After Langerak had expressed a willingness to return to the TPCC on 17 July 2014 Casey had proceeded with the return to work conference with Dr Kahn for the purpose of addressing issues associated with her return to work.  Casey had no recall of Langerak making any complaints to her about appropriate training.

Hussey

  1. [91]
    Hussey a Senior Sergeant of Police is the Officerincharge at TPCC and was in that position at all relevant times to this appeal.  He was advised in late 2013 that Langerak was to be laterally transferred on a TAC transfer from Mt Isa to the TPCC for personal or health reason.  She presented for work on 6 January 2014 upon which time she undertook QCAD training at the Mundingburra Police Complex where she was trained by a Sergeants Edwards and Doyle.  A Sergeant is generally in charge on the floor with persons of Langerak's rank being a level above the civilian staff.
  1. [92]
    Langerak initially appeared to be willing to learn the job but she had concerns about things that were impacting on her life outside of work.  Hussey had been required to give her guidance on how to relate to civilian staff compared to a rank structure.  Langerak at the time had not progressed to senior constable through the PPA system and he attempted to assist her in the progression by developing a strategy to meet the area in which she had failed to meet.  Langerak performed to a standard whereby he submitted a Senior Constable Progression Certificate however further up the ranks her application was rejected which led to her filing a grievance.
  1. [93]
    Hussey went on recreation leave on 28 February 2014 at which time he was satisfied with Langerak's work performance.  Upon his return on 31 March 2014 he received a briefing from Doyle.  Langerak was absent on his return from the workplace and did not return until 6 August 2014.  In general terms he was aware of the circumstances in which she returned to work in August 2014.  On her return he had a conversation with her where it was said that she did not feel confident with the QCAD system which he dealt with by offering to have someone sit with her as a mentor.  He gave her a "pep talk" about being a supervisor, in particular in dealing with civilian staff, make sure there were no ongoing issues and to communicate effectively within her role.  Langerak undertook training on 13 August 2014 as part and parcel of training he had arranged for her and he was informed by the officer providing the training that she was very good at QPRIME and was slowly picking up QCAD, with there being no issues at that stage.  In other feedback received on 15 August 2014 there were references to her being dogmatic when receiving information and that "her current circumstance appears to have a negative impact on her enthusiasm towards the job and work output".
  1. [94]
    On 1 September 2014 Langerak approached him about a possible fraud matter in relation to her exhusband and he arranged for a detective to speak to her.  Langerak had some absences in the early part of September 2014.  Langerak approached Hussey on 11 September 2014 about issues with Sergeant Tania Child (Child) and CO Gay Hoare (Hoare) to which he advised that Child may appear to be a bit abrupt but that it is her management style to be direct.  In relation to Hoare there appeared to be a personality conflict with advice given on how to communicate with her because while she was a very competent communications operator but could be a very direct person.  There was an audit of 16 calls dealt with by Langerak of which four were deemed not be satisfactory.  Along with Doyle he met with Langerak about the calls and spoke at length about what was expected of her and issues raised about other staff.  She accepted they were not of a satisfactory standard and agreed to do better.
  1. [95]
    Langerak had emailed Casey about a chat she had with Hussey on issues she was having with Child and Hoare stating:

I'm at a loss as to what to do.  I'm miserable here in this environment, because I get physical stressors from these two ladies because they know, obviously, that I'm a weak person, I can't stand up for myself.  I've mentioned this to Dr Kahn and my psychologist. [Transcript p. 726]

Hussey's evidence was she had been physically upset but his role as a manager did not entail clear daytoday interaction with the staff.

  1. [96]
    On 22 September 2014 contact was made by Langerak about overpayment of wages and her father having cancer which resulted in her taking leave from work between 22 and 28 September 2018 returning on 29 September 2014 and then absent on leave without pay on 1 and 2 October 2014.  Inspector Jackson (Jackson) contacted Hussey informing him of threats of suicide by Langerak and that her firearm had been double locked since March 2014.  He contacted Casey about Jackson's call with the result being that a work clearance from Dr Kahn had to be supplied before her return to work.  On her return to work on 9 October 2014 she was advised that a potential IME would take place and after that date there was a significant amount of absenteeism.  He spoke to his sergeants that they should work around her needs in respect of her injury management.  Langerak informed him on 20 November 2014 that she was going on sick leave and had arranged to meet with the Police Minister.  Langerak never returned to the TPCC after that day.
  1. [97]
    Under crossexamination Hussey gave evidence around the operation of the TPCC and the requirements for communication operators that including training [Transcript pp. 732 to 734].  In 2014 if a "cleanskin" was to seek employment in communications the police officer would need to undertake a twelve week course that would include:
  • one week orientation;
  • four to five weeks theory; and
  • a mentoring process [Transcript p. 735].
  1. [98]
    The Mt Isa communications centre had operated an IMS system and was a different "beast" to the TPCC that ran under the QCAD system [Transcript p. 736].  Hussey confirmed there were six or seven work groups operating within the Townsville region [Transcript pp. 736 and 737].  Hussey's role as OIC did not require him to give orders, as coordinating services and directing staff was the role of the sergeants as direct line supervisors [Transcript pp. 737 and 738].  The briefing given on his return from leave in March 2014 informed him that Langerak's issues were being dealt with by injuring management, understanding that she was off on extended sick leave [Transcript p. 741].  He was told at the time of her return in August 2014 she had concerns about retraining and not having a successful PPA [Transcript p. 741].  Hussey did not recall being informed of issues such as Langerak feeling isolated, lack of stimulation and the facts about the demographics of TPCC staff (which he disputed) [Transcript p. 742].
  1. [99]
    Hussey accepted that Child could be described as authoritarian with her management style being consistently firm and direct [Transcript p. 744].  In respect of Hoare she was described as a "fairly strong female person" and when you are talking to her you understand her point of view.  In the case of Doyle it was his view that her management style could be described as a "softer, more nurturing style" in comparison to Child and Hoare [Transcript p. 744].  Whilst he spoke to Langerak about how to communicate with Hoare he could not recall having a conversation with Hoare or Child about the same thing.  He decided to monitor the situation rather than act [Transcript p. 745].  It was accepted that other persons had issues with Child's management style, previously but she had since developed [Transcript p. 746].  Hoare would only interact in the workplace on workrelated matters it was the way she behaved [Transcript p. 747].  Hussey told Langerak if things escalated he would take further action [Transcript p. 748].
  1. [100]
    In around 2014 an Inspector had undertaken an investigation into the TPCC which covered a wide area.  The investigation focussed on a number of people including Child and Hussey [Transcript p. 749].  In the period between February and September 2014 Child's management style had improved [Transcript p. 751].  Hussey accepted that when Langerak returned in August 2014 to the TPCC that she faced a number of challenges on the basis of staff being aware she had been on sick leave due to a psychiatric injury [Transcript p. 751].  In January/February 2014 the workplace had certain issues with strong women and those women were still employed there in September 2014 [Transcript p. 752].  Hussey had been informed on Langerak's return that she had completed five days of training [Transcript p. 752].  Langerak had also received training on the system by sitting next to other staff [Transcript p. 753].  Hussey could point to no other training [Transcript p. 753].  On the audit of Langerak's call the evidence was that twelve were not good and four were satisfactory [Transcript p. 754].  Hussey accepted that a sergeant might have managed Langerak in their own special style without having involved him and at times a sergeant may reprimand a constable without involving him [Transcript p. 755].  On 17 September 2014 he was aware there were problems with Langerak's answering of calls but did not believe it was a training issue but rather lack of effort on her behalf [Transcript p. 756].
  1. [101]
    In reexamination it was the evidence that if Langerak had wanted to work different shifts the suitable duties plan would had to have been modified but there had been no request to change the roster.  When the issue of 12 deficient calls was raised with her she had not complained about a lack of training.  The TPCC workforce included a number of young single people.

Kranenburg

  1. [102]
    Kranenburg, an Inspector of Police, was in charge of the Northern communication centres in 2014, based in Brisbane.  On 4 August 2014 he participated in a telephone conference with Casey, Langerak and Dr Kahn which he thought was primarily about a grievance Langerak had lodged the service not supporting her upgrade to Senior Constable.  He had wanted Dr Kahn to be present whilst he passed on information.  There was also discussion in relation to formulating a return to work plan for Langerak to return to the TPCC.  Kranenburg could not recollect the specifics of the meeting but certainly Dr Kahn appeared supportive of her return to the TPCC and he subsequently signed a clearance certificate and a return to work plan.
  1. [103]
    Under crossexamination Kranenburg acknowledged he would have seen an email on 17 March 2014 that talked about Langerak having stressors that included "currently demotivating occupation" [Transcript p. 765].  He was unable to recall his response to this and other matters at the time other than there would have been consultation with her doctor [Transcript p. 766].  In an email from Phillips in March 2014 reference was made in respect of Langerak's history of sick leave and psychological issues and whilst he did not know the rights and wrongs of the issues he had certainly got "a fair taste for her propensity to alter the truth" when he had looked at her grievance report [Transcript p. 767].  In relation to the investigation of the TPCC undertaken previously by an inspector, Kranenburg gave evidence of having made inquiries about Langerak at the time and in his mind it was very clear that Langerak had not been the subject of adverse treatment at the TPCC [Transcript p. 767].  In response to questioning from the Commission Kranenburg agreed that he had never spoken to Langerak about her complaints at the TPCC but had spoken to Hussey and reflected upon information that was in her grievance report [Transcript p. 767].  Nothing Langerak had said in her grievance was actually true and he formed that view at that very stage of the grievance [Transcript p. 768].  In March 2014 he had requested Phillips to explore whether Langerak was suitable for continued employment in the QPS [Transcript p. 769].  He was expecting that the advice would be based on medical professional's advice [Transcript p. 770].  It was not all about managing people out, it is also about helping them back [Transcript p. 770].
  1. [104]
    On whether he had read reports written in relation to Langerak it was his evidence that he may not have been provided with the material and had no specific recollection of reading such material [Transcript p. 771].  The meeting of 4 August 2014 was many months after the grievance had been lodged by Langerak and he had not kept notes of the meeting [Transcript p. 773].  The purpose of the 4 August 2014 meeting was for Langerak to have support from her psychiatrist when she received news that she would not want to hear [Transcript p. 774].  At that meeting if Dr Kahn had said putting Langerak back into the TPCC was going to cause a relapse then the QPS would not have progressed with the suitable duties plan [Transcript p. 775].  Kranenburg's best recollection of the 4 August 2014 meeting was along the lines of telling Dr Kahn that all Langerak needed to do was to buckle down and demonstrate some satisfactory performance [Transcript p. 776].  He certainly would not have suggested or been party to placing her in an environment that would cause her further distress and in this case he was not the decision maker, Horton was [Transcript p. 777].
  1. [105]
    In reexamination Kranenburg stated that he had spoken to the inspector who had conducted the investigation of the TPCC specifically about Langerak's allegation of negative workplace behaviour and was informed there was "absolutely no substance to it".

Dr Gundabawady

  1. [106]
    Dr Gundabawady a Consultant Psychiatrist conducted an assessment of Langerak on 4 November 2014 at the behest of the QPS and subsequently compiled a report (dated 11 November 2014).  He was further contacted by Casey which prompted another report (dated 1 December 2014) being provided by Dr Gundabawady.  In correspondence (dated 2 March 2015) the QPS elicited a further report from him (dated 18 March 2015).
  1. [107]
    In the report of 11 November 2014 Dr Gundabawady detailed Langerak's history with the QPS, from her initial engagement at the Townsville Police Academy in 2007, which included:
  • 2009 incident at Emerald which led to her suffering from anxiety, fear and depression which was followed by a graduated return to work at a number of police stations;
  • July 2010 given a clearance to return to full duties;
  • August 2011 granted a compassionate transfer to Toowoomba where there were issues around her work duties, lack of a supportive network and reports of being bullied and harassed;
  • May 2012 reported strain in her relationship with her husband;
  • December 2012 given a compassionate transfer to Mt Isa;
  • May 2013 became aware of husband having an affair;
  • August/September 2013 struggling with marriage breakdown and financial difficulties;
  • December 2013 transfer to TPCC starting work in January 2014 where she reports she was struggling to engage with others and forge relationships becoming more and more depressed and struggling to cope.  Reports of being bullied by two female staff at the TPCC;
  • April 2014 admitted to Toowong Hospital following a deterioration in her mental health later returning to work on a graduated plan in August 2014;
  • 3 October 2014 informs Health and Safety Officer at the QPS not coping making direct comments about selfharm; and
  • November 2014 reported to Dr Gundabawady that she does not find work at the TPCC challenging, had a number of issues and being a nasty place to work.  Also had significant financial difficulties due to marriage breakdown.
  1. [108]
    Upon examination of documents provided he opined that Langerak had a depressive and anxiety disorder with her condition not in full remission.  She also had a series of psychological stressors which were maintaining her depressive symptoms and stressors at work.
  1. [109]
    Dr Gundabawady addressed a number of questions specifically raised by the QPS where amongst other things he opined:
  • he agreed with Langerak that the TPCC had not been supportive which was not helping with her condition;
  • he disagreed with a return to fulltime operational duties;
  • her current psychiatric condition had been impacted by her discontent at the TPCC;
  • Langerak had no personality disorder or challenging behaviour that suggested poor work performance;
  • current stressors seem to be a marriage breakup, significant financial difficulties and stressors in her current workplace [TPCC]; and
  • Langerak was not fit to return to frontline duties but a reassessment could be undertaken in four to six months with it likely, subject to treatment and recovery, she would be able to return to fulltime duties in the next six to 12 months.
  1. [110]
    The second report of 12 December 2014 was provided following a request for clarification by the QPS on the independent assessment and report provided on 11 November 2014.  In response to a series of questions, Dr Gundabawady advised that:
  • his first report was based upon her selfreport and reports by treating psychiatrists (Dr Matthews and Dr Kahn);
  • after reviewing additional documentation provided by the QPS outlining support mechanisms he opined that she had been given all available support at work;
  • despite the adequate support demonstrated by the QPS Langerak continued to have significant stressors, no family/social support and financial difficulties; and
  • non workrelated psychosocial factors were significantly contributing to her medical condition and decompensation.
  1. [111]
    A further assessment of Langerak was undertaken on 17 March 2015 at the request of the QPS which brought about responses to further questions posed in the referral that included:
  • no report of significant symptomology of anxiety or depressive symptoms which were quite predominant, especially at her previous workplace, had largely subsided;
  • Langerak at that stage was able to make critical operational policing decisions under duress, capable of carrying a firearm and drive a police vehicle under conditions of duress;
  • Langerak had significant difficulties previously at the TPCC which had worsened her anxiety and depressive symptoms whilst working at the TPCC.  The workplace stressors seemed to have not resolved and it was likely a relapse of her depressive and anxiety symptoms would occur if she were returned to work at the TPCC.  These barriers seemed to be permanent.
  1. [112]
    Under crossexamination the doctor evidenced that the primary object of 4 November 2014 was to decide whether Langerak was suitable to continue at the TPCC and the QPS generally.  He had been provided with a set of documents which included the job description and medical reports.  In compiling the three reports he had seen her on the occasions of the first and third reports [Transcript p. 85].  At the first meeting she reported the stressors at work that she perceived and after the assessment he was provided with further documents [Transcript p. 86].  Langerak was forthcoming in the interview process providing information about stressors outside of work about her marriage and finances [Transcript p. 86].  On the questions put forward by the QPS he indicated one of the questions was a standard question asked about being suitable to continue at QPS [Transcript p. 87].  Dr Gundabawady was unable to recall whether the documents provided by the QPS had contained the reports from Dr Matthews or Dr Kahn [Transcript p. 87].  He acknowledged references to Dr Kahn and Dr Matthews in his first report but had not mentioned they had both said she was fit to return to general duties [Transcript p. 89].  At 4 November 2014 he did not consider her condition to be in full remission and he recommended she be given alternative duties whilst she recovered [Transcript p. 812].  He understood that the QPS had followed his advice and placed her at a PCYC [Transcript p. 813].  Between when he saw Langerak on 4 November 2014 and March 2015 her depressive symptoms had gone into remission [Transcript p. 813].  In March 2015 Langerak reported to him that the PCYC had been supportive [Transcript p. 813].
  1. [113]
    In the period between 19 June 2014, November 2014 and March 2015 it was accepted by the witness that she had stressors outside of work some of which were documented in his first and third reports [Transcript p. 814].  In November 2014 and March 2015 those personal stressors were operative [Transcript p. 815].  Dr Gundabawady did not accept that clinically her workplace was the significant factor because all the stressors were not consistent or persistent [Transcript p. 816].  His role had not been to access what was the major significant contributing factor but to focus on her condition and whether she was fit to return to work [Transcript p. 816].  Langerak had reported to him that at the TPCC she had been bullied by two female staff and felt ostracised [Transcript p. 817].  He was unable to remember if the QPS had provided information about the environment at the TPCC [Transcript p. 818].  The supplementary report in December 2014 had been based on further documents provided by the QPS outlining support mechanisms at the TPCC [Transcript p. 819].  The additional documents were not put to Langerak by him [Transcript p. 819].  Three propositions were put to the witness as being relevant to his considerations if had he known of them and were the subject of affirmative answers.  These were:
  • if there was evidence that she had a very traumatic experience at the TPCC between January and March 2014 and was told there was no option but to do a return to work there anyway with or without adequate support;
  • if two treating psychiatrists had recommended that she not be sent back to the TPCC but was sent back anyway; and
  • if she was returned to the TPCC with conditions in place and accommodations made would that be relevant to whether or not she received adequate support. [Transcript pp. 821 to 822]

The recommendation he had made that Langerak be moved away from the TPCC had improved her position [Transcript p. 823].

  1. [114]
    In reexamination he did not at the time of the first report consider Langerak needed time off.  At the interview with Langerak on 17 March 2015 she had not disclosed any history about an incident in late November 2014 regarding selfharm relating to her relationship difficulties.

Bourke

  1. [115]
    Bourke an Acting Inspector of Police was in May to July 2014 relieving Kranenburg in the State Coordinator role in communications.  In May 2014 he assisted Langerak in seeking a review of the PPA by forwarding reports to the Queensland Police Union.  He further had involvement in the application by Langerak to the sick leave bank.
  1. [116]
    Under crossexamination he recalled some correspondence from Kranenburg in relation to Langerak's PPA but he was not privy to whether there had been discussions between the pair [Transcript p. 837].  He had some involvement in stages 1 and 2 of the process which did not support the review and it was referred to Horton for stage 3 [Transcript p. 838].

Fitzpatrick

  1. [117]
    Fitzpatrick an Inspector of Police who in July 2014 was relieving for a couple of weeks as the Superintendent of the Police communications group.  He had no recollection of making a telephone call to Langerak on 11 July 2014 between the hours of 3.30 pm and 4.00 pm or at any other date.  He denied ever telling Langerak that the service would not offer her rehabilitation.  Fitzpatrick referenced his diary for 11 July 2014 which recorded a conversation that commenced at 1.50 pm and finished at around 6.00 pm but this did not involve Langerak.
  1. [118]
    Under crossexamination he was taken to an email from Casey to Langerak (dated 11 July 2014) indicating that he was to telephone Langerak between 3.30 pm and 4.00 pm.  He reiterated that he had no recollection of making a telephone call to Langerak but recalled begin briefed by Casey and calling Kachel a Police Superintendent in Townsville seeking an opportunity for Langerak to undertake rehabilitation in Townsville where he was informed that "there is no opportunity for that" [Transcript p. 844].  The call to Kachel was for the purposes of placing Langerak somewhere other than the TPCC [Transcript p. 844].  Fitzpatrick acknowledged that his diary for 11 July 2014 did not have a ceasing time for the meeting he was in, however recalled the sergeant in the meeting had a 2.00 pm to 10.00 pm shift that day [Transcript p. 845].

Doyle

  1. [119]
    Doyle is a Sergeant of Police who held that rank at the TPCC in 2014.  She recalled Langerak commencing at the centre in January 2014 and of her involvement in training Langerak at the time.  Doyle was aware of some compassionate grounds relating to her transfer from Mt Isa.  Doyle on occasion supervised Langerak at the TPCC and at times spoke to Langerak about "nothing serious, just the usual".  There were little things such as being late once and she never had a drama with her.  On 10 March 2014 her diary recorded Langerak advising that she had been unwell and her shifts would need to change.  Langerak "burst through the door" sobbing and informing her about the issues relating to her personal circumstances.  Langerak said she had felt intimidated by a friend of her exhusband's new girlfriend.  They spoke about her current work situation with Doyle inquiring if she would consider alternate duties.  There was an attendance by Langerak at her office on 17 March 2014 where she produced a doctor's letter stating she was suffering from "acute stress reaction".  On 24 March 2014 Langerak advised she had a meeting with the HSO and was to later meet with the HSO and Jackson.  To the best of her knowledge she did not return after the meeting.  Doyle's observations of Langerak at that time was that she was very quiet and got upset a few times.  On the investigation carried out into the TPCC there had been no adverse findings against her in respect of Langerak.
  1. [120]
    Under crossexamination Doyle agreed that in the January/February 2014 period Langerak was going along satisfactorily [Transcript p. 856].  On the management style of Child and herself in that they were in a similar boat because they were females and what the "boys" said could be easily accepted but offence could be taken against Child and herself.  Child had a very "straight to the point" management style [Transcript p. 856].  In the case of Hoare she had a strong personality and was "loud and direct" [Transcript p. 856].  In relation to the investigation into the TPCC that had prompted a complaint by a senior constable about negative workplace behaviour, Doyle was a subject officer in terms of the complaint [Transcript p. 857].  With regards to Langerak's errors in using QCAD, Doyle had spoken to her about numerous errors but stated that when "any persons starts with it, it's quite complicated" [Transcript p. 857].  In terms of training civilian operators in the TPCC, they received long periods of training because their training encompassed basic policing [Transcript p. 858].  Doyle recalled a discussion with Langerak on 11 March 2014 where she spoke of not coping with home and work and of being determined to get back to general duties and not being happy at the TPCC [Transcript p. 858].  When Langerak returned to the TPCC in August 2014 the workplace had not changed significantly and she was not aware of any particular accommodations being made for her with the conditions pretty much identical [Transcript p. 860].  The witness was taken to an email (dated 26 March 2014) from Kranenburg to Phillips to which Doyle had been cc'd into and assumed she had received it.  The content of the email was as follows:

As discussed, Const Jade Langerak, Townsville PCC has a history of sick leave and psychological issues.  Following a requested transfer from Mt Isa generals to Townsville PCC, she is still not happy, has gone sick and has supplied the attached medical certificate.

She is being provided with HSO support from Sandi Wickam in Townsville, is partaking in the EITP and has signed the authority for access to medical records.  I believe Sandi has the signed copy.

Judging from Jade's previous extensive sick leave history and current episode, I am concerned she may not be suitable for continued employment in a PCC or the QPS.

I would be grateful if you could commence the process of gathering relevant information from her medical professionals to assist in our decision making process?  [Transcript p. 862]

Submissions

Appellant

Background

  1. [121]
    The submission identified two significant setbacks in Langerak's career with the QPS being:
  • on or about 2009 as a secondyear constable stationed at Emerald Police Station she proceeded to arrest a woman against the wishes of a number of off duty police officers which followed her for a number of years; and
  • in mid2013 whilst stationed at Mt Isa she experienced relationship difficulties with her husband, also a serving police officer that resulted in her departure from the marital home.  Langerak applied for and was granted a transfer to Townsville commencing at the TPCC on 3 January 2014.
  1. [122]
    Langerak found the work at the TPCC not to be rewarding due to issues with the position, staff, technology and some difficult personalities amongst the sergeants.  By March 2014 she had fallen into a dark place and had been admitted into the care of Dr Matthews at the Toowong Private Hospital where she remained for a period of some six weeks.  On her discharge from Toowong on 27 May 2014 Dr Matthews wrote:

I have recently treated Constable Langerak in hospital for symptoms of a mood disorder.  She has improved with treatment.  I would be happy for her to return to general duties police work from 16 June 2014.  Her usual treating psychiatrist will be able to provide an updated report at this time regarding access to a service issue firearm.  I would support Constable Langerak returning to General Duties rather than her current substantive role in communications, given her preference and mental health issues.

Langerak provided the letter to Bourke.

  1. [123]
    Langerak had a medical certificate indicating she was fit to return to work from 16 June 2014 at which time she was informed by her rehabilitation coordinator it was being contemplated she return to the TPCC.  Langerak expressed her concerns in correspondence sent to Hussey and indicated she "would be prepared to see an independent doctor".
  1. [124]
    The QPS through Bourke informed a return to work for Langerak would not be progressed until certain correspondence was received from her treating psychiatrist (Dr Kahn).  Correspondence was generated by Dr Kahn on 19 June 2014 in response to correspondence from the QPS (dated 12 June 2014).  Dr Kahn in the correspondence stated the following:

[Ms Langerak's] prior work in the communications area was a substantial contributing factor to the onset and severity of depression.  Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.

Outside of her work in the communications post she described, there are no psychiatric impediments of which I am aware to her being able to gradually return to work as a Front Line Officer in a safe, efficient and effective manner.  In a similar vein, I am not aware of clinically significant reasons as to why she should not be able to perform the following capacities:

  • To make critical operational policing decisions under duress;
  • To carry a firearm and make strategic and critical decisions in its use under duress;
  • To drive a police vehicle at speed under conditions of duress.

Dr Kahn also recorded that Langerak had recovered substantially, was now doing well and highly motivated to return to work.  Further he went on to record he did not consider that Langerak had any vulnerabilities or significant deficiencies that would have an adverse effect on her capabilities to function as a Front Line officer.

  1. [125]
    On the same day Dr Matthews also wrote to the QPS stating:

I understand that it is the wish of Queensland Police Service for Ms Langerak to remain in Police Communications, rather than returning to General Duties.  I am of the opinion that to continue Ms Langerak in the Police Communications environment would be deleterious to her health and welfare and can confirm that she was medially fit to return to General Duties policing at the time of her last consultation with myself, which was 10 June 2014.

I am also satisfied that, at the time of my last consultation with her, she was suitable to have a police firearm and operate a police vehicle.

I would strongly support the return of Ms Langerak to General Duties policing and would be concerned about the adverse health effects of staying in the Police Communications.

It was Langerak's recall that Bourke and Hussey were provided with this correspondence. and despite support from Dr Kahn and other practitioners Langerak was not returned to work.

  1. [126]
    Dr Kahn continued to provide reports in unequivocal terms in response to questions from the QPS and opined amongst other things that Langerak had found the TPCC environment isolating and hostile, counselling against her return.  Langerak had made it very clear in a series of emails of her anxiety at the contemplation of a return to the TPCC and whilst the QPS had made enquiries about securing alternate employment, no positions were found
  1. [127]
    Dr Kahn in or around 15 July 2014 was requested by the QPS to participate in a meeting so that the terms of Langerak's return to TPCC may be discussed.  On 24 July 2014 Kranenburg emailed Langerak to advise that "The Assistant Commissioner is sending you a letter of review in relation to your medical condition".  Langerak was said to be terrified by this turn of events which caused her to email Casey to ask if her employment was being terminated.  Casey responded by indicating she was aware that the content of the letter was:

…to provide you with formed options in relation to your [her] medical condition…Your permanent restriction is a barrier in returning to work in your substantive position at the Townsville Communication Centre…

As it happened Langerak had reasons to be concerned because the letter that had been drafted for the Assistant Commissioner to sign had contemplated the separation from the QPS on medical grounds.

  1. [128]
    On 28 July 2014 Langerak wrote to Casey withdrawing her opposition to the TPCC position on the understanding that was her "only option" and she was prepared to return.  In her evidence she explained the reason for the sudden change in the following terms:

Because, at that point in time, I knew that it was to be medically retired or have a job and push through and hope for the best.  I still at that time the thought of not being a police officer was something I couldn't I couldn't even imagine.  That was I was prepared to do whatever I had to do to maintain to keep my position as a police officer.

Langerak's position was further compounded by her extreme financial circumstances having been caused by not being in receipt of any payment in this period from her employer.

  1. [129]
    On 4 August 2014 there was a meeting about Langerak's return to work plan and whilst there were differing accounts from those who attended Dr Kahn gave unequivocal evidence that he had reiterated his view to Casey and Kranenburg that Langerak should not be returning to the TPCC although Casey deposed that there was no such discussion.  In any case a suitable duties program was prepared and signed off by the parties.
  1. [130]
    Langerak returned to work on 6 August 2014 and from her evidence it was evident the return to work did not go well for a number of reasons.  She eventually started to decompensate and in the course of October 2014 the QPS arranged for an independent medical assessment to be undertaken.  The assessment occurred in early November 2014 at which time Dr Gundabawady found that Langerak was suffering from an anxiety disorder and that those symptoms were "partially controlled with the current treatment with the maintaining factors being psychosocial stressors and stressors at work".  The doctor concluded that if Langerak was given a supportive environment and recovered from her symptoms in a nonoperational position the impact of her condition might not be permanent and could be reassessed for a return to work as a front line police officer.  The QPS offered a return to work program at the Ross River PCYC which was a nonoperational site and effectively an "extra" that was created for Langerak.

Decision at First Glance

  1. [131]
    Langerak subsequently sought compensation for her condition and it was found by the Regulator in a decision delivered on 22 December 2016 that Langerak had:
  • sustained a personal injury;
  • the injury arose out of work and work was the major contributing factor; but
  • the injury arose out of management action taken in a reasonable way.
  1. [132]
    The sustained injury finding had been supported by medical findings from Drs Matthews, Gundabawady and Kahn with Dr Gundabawady stating in his report:

Ms Langerak sees herself as fully capable of returning to full time duties as a front line police officer.  She is currently working at the Communication Centre.  She is reporting a series of difficulties at her current workplace.  She also reports a lack of family/social support and continues to present with underlying anxiety and depressive symptoms.  Even though she is working full time at the Communication Centre, she reports she is not coping very well in her current workplace.  I do agree with Ms Langerak that her current workplace has not been supportive and is not helping her with her condition but I am inclined to disagree with her capacity with regards to return to full time operational duties unless she has full remission of her condition.  She should continue to work in an alternative position for at least a period of four to six months.

  1. [133]
    The essence of the case for the Regulator was that even if Langerak had sustained a mental illness as a result of working at the TPCC it occurred through reasonable management action taken in a reasonable way, namely Langerak returned to her substantive position on advice from her treating psychiatrist.  Langerak disputes the management action was reasonable or taken in a reasonable way because:
  • relevant training had not occurred;
  • there were other positions available for the return to work purposes that did not involve relevant risk; and
  • the QPS having disregarded the views of the two treating psychiatrists should have obtained an IME.

Training

  1. [134]
    The suitable duties program required a level of training to be provided for the purposes of upskilling Langerak's knowledge and skills in relation to computerbased application required in her role at the TPCC.  The emphasis on training was very deliberate as her ability to recall the QCAD operations could have been affected due to her medical condition.  Langerak gave evidence of the difficulties she had experienced in the period between January 2014 and March 2014 having to work with technology that had a 12week training program and she had been given three days training.
  1. [135]
    Langerak's experience was largely in the area of general duties although whilst at Mt Isa she had worked in Communication which had been conceded as a vastly different proposition to that of the TPCC for reasons that included the size of the operations and the program in Mt Isa was two generations earlier than QCAD.  The evidence of Hussey basically confirmed the differences between Mt Isa and TPCC in terms of staffing and software.  The QPS had agreed that any training Langerak required on her return to work would be supported.
  1. [136]
    There were a host of reasons why a reasonable employer would not have sent Langerak back to the TPCC for a return to work program however if that decision was taken then it was clearly important that proper training be given to prevent exposure to stress and criticism.  QPS had maintained that they were arranging a suitable duties program with appropriate training and a supportive environment which was hardly surprising when the robust environment of the TPCC was considered.  There had previously been a major internal investigation into the working conditions at the TPCC, so significant that Hussey had been interviewed for 15 hours and indeed Hussey had conceded that in his view there were workers there who were difficult to deal with but it was best to leave the issue alone.  He went on to give evidence about two employees at the TPCC who were not called to give evidence in the proceeding, describing one as being "authoritarian", "direct" and conceded to Langerak she was not the first person to have issues with that person (a serving Sergeant of Police).  The other person (a nonserving officer) was said to be "a strong person and she doesn't leave you wondering if you don't get on with her…".  An employee of the QPS for 40 years had a "strong personality".
  1. [137]
    Langerak had indicated in August/September 2014 that one of the Sergeants was a problem to which Casey had remarked was not as bad as it had been in the past.  Langerak had also raised the matter with Hussey who told her to basically put up with it and he decided to "monitor the situation".  He certainly accepted that people had found the management style of the Sergeant direct and confronting.
  1. [138]
    The three days of training that had been provided was on any view, very modest along with some onsite training that occurred when Langerak was "shadowed" by another worker for a shift.  Langerak at the same time was having issues with being isolated and reprimanded for failing to grasp what she should be doing at work, giving evidence that:

I got into trouble a lot of times for mistakes in the on the system…I was in trouble a lot for my ability on the system.  There weren't no processes as such.  there were processes on the computer system.  I didn't know the computer system.  I didn't have adequate training.

  1. [139]
    In summary the posting of Langerak to the TPCC for return to work duties had not been carried out in a reasonable way in circumstances that included amongst other things:
  • most of her history was in general duties;
  • failure to provide adequate training;
  • received only three days training;
  • no assessment had been made on whether her training was adequate;
  • in June/July 2014 Langerak was reassured that on her return to work she would be in a supported environment;
  • her lack of technical proficiency was a source of considerable stress when she contemplated a return to the TPCC;
  • it was repeatedly stipulated that there would be adequate training; and
  • no one had:
  • performed a "scope of works" to identify training needs;
  • no training was identified that could be considered successful and complete; and
  • measured whether the training had been adequate.

No other positions available

  1. [140]
    It was also unreasonable to send Langerak back to TPCC because there was no proof that it was necessary.  The indications in May/June 2014 from the doctors was that her recovery would be detrimentally affected by her return to communications yet she was enthusiastic about a return to work, highly committed to her role as a police officer and needed to return because of her financial circumstances.  The QPS should have returned her to a position other than in communications.
  1. [141]
    There was an acknowledgement that Casey gave evidence of seeking out other positions in the QPS without success.  Notwithstanding that evidence the criticism of the QPS is maintained because:
  • no evidence of any enquiries made for a position outside of TPCC from 27 May 2014 to 9 July 2014;
  • no evidence of any enquiries made for a position outside of TPCC from 11 July 2014 to 5 August 2014;
  • QPS failed to consider any general duties positions despite Dr Kahn's opinion;
  • the only time any enquiries were made for a position outside of TPCC was from 12 noon on 9 July 2014 to the evening of 11 July 2014 and even then it was only nonoperational positions considered; and
  • of the six different divisions in the Northern District only one responded to enquiries.
  1. [142]
    The position of the QPS to maintain Langerak had agreed to go back to the TPCC was disingenuous because:
  • she had been rallying for weeks against returning to the TPCC;
  • on 15 July 2014 she generated correspondence in which she was clearly angry at the prospect of being forced back to TPCC; and
  • it was only when the QPS intimated she would be receiving a letter from the Assistant Commissioner going to "options" that she thought may have been termination that she indicated a preparedness to return to the TPCC.
  1. [143]
    Dr Kahn had sent letters on 19 June 2014, 1 July 2014 and 8 July 2014 indicating Langerak should not return to the TPCC and there is no evidence Dr Kahn ever resoled from that position although he had an understanding the only option was that she return to the TPCC or her position would be terminated.
  1. [144]
    It should have been apparent that a return to the TPCC was likely to be stressful for Langerak given the toxic work environment and the robust nature of the sergeants in the workplace which was good reason why the return to work program should have been away from the TPCC.  Langerak emailed Casey on 22 July 2014 stating:

I know I have to go back to my position.  I just really need to do my rehab stint somewhere else.  be it counter or watch house or on the road.  I can't go back to Coms still with the same feelings I have from prior.  It is causing too much anxiety and worry.

  1. [145]
    Further as early as 9 July 2014 she had written to Casey about her return to work advising Casey:

I have been given a clearance to return to work.  Just not in Communications.  I am prepared to work in any other area and said this to Superintendent Fitzpatrick and I'm desperate to get back to work and need to.  Obviously this is just a return to work plan and not an overall position number so I can't just go somewhere for my rehabilitation purposes.

  1. [146]
    In evidence Horton testified:
  • Ross River PCYC job was available in June 2014;
  • in fact such an "extra" position could have occurred at any workplace across the district which included a range of areas that were nonoperational (up to 50 potential placements); and
  • if she could not work at the TPCC consideration would be given to issuing a separation certificate.

Lack of IME

  1. [147]
    The QPS decision to disregard the medical advice of Dr Kahn meant that it was only reasonable that they sought an IME of Langerak.  In an email (dated 16 June 2014) she had indicated that communications was a contributing factor to her illness which was supported by medical evidence and if the QPS had any doubts she was prepared to see an independent doctor.  Langerak on 17 July 2014 wrote to Casey offering to see an independent psychiatrist.
  1. [148]
    Horton in evidence said he "disagreed with Dr Kahn's reports and he had considered Langerak's psychiatric condition made her unsuitable for front line duties regardless of what the treating psychiatrist had said.  An IME would have ascertained whether or not it was appropriate to have given her an operational role or not.

Conclusion

  1. [149]
    It was submitted that Langerak had sustained an injury by reasons of her workplace with the remaining issue being whether or not it was cause by reasonable management action carried out in a reasonable way.  The Regulator had not been able to establish this proposition therefore the application should succeed.

Regulator

Parameters of the Issues

  1. [150]
    There were no issues with the appellant being a "worker" within the meaning of the Act.
  1. [151]
    The evidence discloses that after a number of days off work prior to 20 November 2014 the appellant returned briefly to work but left and did not return to work.  It is also not disputed that she returned to work at the PCYC in early January 2015.
  1. [152]
    On 4 November 2014 Dr Gundabawady examined her for the purposes of fitness for duty and arrived at the following diagnosis:

Major depressive disorder, recurrent, current episode severe, in partial remission.

Anxiety disorder not otherwise specified.

On 19 November 2014 a general practitioner diagnosed the appellant with "depression - major".

  1. [153]
    On the basis of the medical evidence it can be fairly said that the appellant an injury in the time leading up to and immediately before she left work on 20 November 2014 with the crucial issue being whether the evidence can establish that her employment could be the "major significant contributing factor" to any injury as diagnosed.
  1. [154]
    The appellant's case appears to be:
  • the decision to return her to the substantive position at the TPCC in August 2014 on advice from her treating psychiatrist did not amount to management action that was reasonable or not taken in a reasonable way on account of:
  • -no adequate training;
  • -no alternate positions were offered for return to work purposes; and
  • -in circumstances where the appellant's treating psychiatrist was proposing a return to work away from the TPCC, an IME should have been undertaken.
  1. [155]
    The initial focus of the appellant's case was that the decision taken in the case conference on 4 August 2014 to return her to her substantive position at the TPCC was in all circumstances tantamount to unreasonable management action however that focus switched to stress due to the added factors of the alleged lack of training and the failure of the QPS to arrange an IME.  It was accepted that the failure to find another position was interwoven with the decision to return her to the TPCC.
  1. [156]
    The evidence falls short of establishing that the issues regarding the alleged lack of training and failure to provide an IME were causative of her depression condition which had not been noted until November 2014.  At best these issues amount to no more than aspects of the QPS's management of the appellant's employment.
  1. [157]
    The principle submission of the Regulator is that it cannot be shown that any employment factors had reached the threshold of being the major significant contributing factor of the appellant's psychiatric condition in November 2014 and the causes for that condition arose out of the longstanding deeply distressing breakup of the appellant's marriage.
  1. [158]
    In the event it was found by the Commission that any employment factors reached the threshold of a major significant contributing factor it can be fairly characterised as reasonable management action in this case.

Format of Submissions

  1. [159]
    A large amount of both oral and documentary evidence was placed before the Commission during the course of the hearing.  A chronology of the relevant events was attached to the written submissions.

History prior to January 2014

  1. [160]
    The history discloses that Langerak had been frequently seeking transfers from station to station to accommodate her personal circumstances with the most pressing personal issue prompting the transfer requests associated with relationship issues with her husband.  In December 2009 a claim had been lodged by her for a workrelated stress injury arising from the incidents that occurred in Emerald which resulted in a lengthy time of rehabilitation that extended until January 2012.  In that period of time there were a number of transfers and concerns raised about her ability to return to full operational duties.  There was a history of a number of workers' compensation claims having been lodged by Langerak.  Horton had considered this history when Dr Kahn and Langerak began agitating for a return to fulltime operational duties in late May 2014.
  1. [161]
    The relationship with her husband was clearly a factor that impacted upon her psychiatric health in that:
  • November 2010 Dr Flanagan Psychiatrist noted "minor psychosocial stressors due to a fear about the security of her relationship with her husband";
  • August 2011 Langerak requested a transfer from Toowoomba to the northern region "so that she can make attempts to reconcile her marriage to with [sic] her husband who was posted to Camooweal after a period of separation";
  • April 2013 Langerak commences agitating for a transfer from Mt Isa with an extended absence from work occasioned by the breakdown of her marriage from 15 August 2013 until 15 September 2013; and
  • October 2013 application made for a TAC transfer away from Mt Isa.
  1. [162]
    There were an extensive list of personal stressors both associated with or caused by her marriage breakdown that could only have had an enormous impact of her psychiatric health.  There were also threats made against her from her exhusband's new partner and others who had told her "they would win or finish me [her] off".
  1. [163]
    Prior to commencing at the TPCC in January 2014 it was the case that she had chosen that position and not a watch house position that had been offered and had continued to seek a "station position, as a general officer".

Initial Phase at TPCC

January to February 2014

  1. [164]
    Hussey had ensured that adequate training to equip her for work at the TPCC had been provided and he had assisted her with progression to the Senior Constable rank.   In the course of training she had informed Doyle that she wanted to "head for the generals straight away".

March 2014

  1. [165]
    In this period Doyle acted as supervisor in Hussey's absence and on or around 10 March 2014 Langerak presented to Doyle complaining of threats made by her estranged husband's new partner.  There were a number of absences from work at this time and in consultations with a general practitioner on 20, 26 and 31 March 2014 she raised these personal issues.  On 15 April 2014 she was admitted to the Toowong Private Hospital.
  1. [166]
    The principle basis of the appellant's case was that the decision to return her to the TPCC in August 2014 was completely misguided because her work in the period from January to March 2014 had caused her psychiatric health to deteriorate with reliance upon Dr Kahn's report of 9 June 2014 which had stressed that this work was a "substantial contributing factor to the onset in severity of her depression".
  1. [167]
    The acute difficulty in this assertion is that the contemporaneous records do not reflect such a claim.  the Commission's attention was directed to:
  • general practitioner's notes in the lead up to the admission;
  • the contrast between Dr Kahn's reports of 5 April 2014 and 19 June 2014 in which there is a focus on the alleged factors that cannot be ignored;
  • the admission notes for Toowong Private Hospital; and
  • Dr Matthew's report for reasons relating to her admission to the Toowong facility.
  1. [168]
    There was a lengthy history of Langerak having lodged as many as ten workers' compensation claims previously and her reasons for not doing so on this occasion were unconvincing.  These matters detract significantly from her credit and reliability and the contemporaneous evidence, at best, discloses that she did not like communications work, found the work unmotivating as opposed to general police work.  There was a need for her work commitments to be measured against the grievous personal stressors.

Late May  June 2014

  1. [169]
    On 19 May 2014 Bourke was contacted by Langerak for the purposes of seeking a "pay rise and back pay" with no mention regarding work stressors whilst working at the TPCC.  The motivation related to her welldocumented perilous financial position which was occasioned by her marriage breakdown.  In early June 2014 she began to advocate through Drs Kahn and Matthews for a full return to operational duties on the basis of being "fully recovered" and that any return to the TPCC would trigger a relapse because that work had caused the deterioration in her mental health in April 2014.  Dr Khan's assertions about a return to work set in train a series of events which culminated in the case conference on 4 August 2014.

June  July 2014

  1. [170]
    In this period there were a number of email exchanges between the parties and whilst not embarking upon a detailed analysis of these emails it can be fairly summarised that:
  • Langerak continued to agitate for a return to general duties;
  • the realistic view taken was that any return to work had have proper meaningful duties and adequate supervision;
  • due to administrative changes within the QPS it was difficult for Casey to find any positions that were meaningful and had adequate supervision;
  • from 8 July 2014 the QPS made efforts to have a case conference with Dr Kahn about Langerak's return to the TPCC especially in relation to any restrictions; and
  • Langerak as early as 17 July 2014 expressed to Casey her intention to return to TPCC including making the statement "I'll lie about everything" that was referred to Dr Kahn.
  1. [171]
    It was accepted that on 24 July 2014 there was a warning given to Langerak that she was to receive a letter from the QPS, potentially impacting upon her future employment although it should be noted that she never actually received the letter.  In evidenceinchief she explained that the prospect of being medically retired forced her to change her mind about returning to the TPCC but as early as 17 and 19 July 2014 she had expressed an intention to return to the TPCC in writing to Casey and conversation to Hussey.
  1. [172]
    On the suitability to carry a firearm it was Horton's evidence that it was the responsibility of senior police to manage and that he may not accept the advice from a treating psychiatrist as being conclusive.

Case Conference:  4 August 2014

  1. [173]
    The Commission will need to make findings about what occurred at the conference in part due to amendments to Langerak's initial Statement of Facts and Contentions (dated 25 March 2017) in which it was stated:

At the time of the conference, Dr Khan recommended that the Applicant return to work at a location other than the TPCC.  Notwithstanding the recommendation, the QPS did not offer the Appellant work options other than the TPCC.

  1. [174]
    The most recent iteration in her Statement of Facts and Contentions (dated 9 October 2018) replaced parts of the initial document and amongst other things with regards to Dr Kahn's conduct at the case conference stated:

Dr Kahn confirmed his view that:

  1. (i)
    The Appellant should not be returned to the TPCC; and
  2. (ii)
    The risk of relapse of her severe major depressive disorder would be increased by requiring her to return to the TPCC;

The QPS directed the Appellant that she should return to the TPCC.

The change in the position of the appellant on this issue was said to reflect adversely upon her credit and reliability.

  1. [175]
    Differences existed between the recall of those present at conference about Dr Kahn's position on her return to the TPCC with Casey giving evidence that neither Langerak or Dr Kahn mentioned anything about her not returning to the TPCC and Kranenburg informing the Commission that Dr Kahn appeared support of return and that he signed a clearance certificate and a return to work plan.  Kranenburg in crossexamination confirmed that if "something that raised concerns" about her being put back to the TPCC the QPS would not have done so.  Casey evidenced that if Dr Kahn had not sanctioned a return to the TPCC then an independent medical examination would have ensued.
  1. [176]
    There was a question on the credit and reliability of the evidence of both Langerak and Dr Kahn about the opposition to a return to work at the TPCC.  In the case of Dr Kahn there were questions about explanations given in respect of his failure to make no reference in notes about his stated opposition to a return to the TPCC and that it was implausible that he "didn't have time to write" that important piece of information.  The final nail in the coffin of Dr Kahn's credibility was that if the case conference had preceded as claimed the report of 7 August 2014 would not have been written.

August  September 2014

  1. [177]
    Hussey gave evidence about his role in Langerak's return to the TPCC on 6 August 2014 and allegations by her in respect of his conduct were not put to Hussey in crossexamination.  Whilst she may have found the work "unsatisfactory" the acute difficulty for the appellant is that the workrelated complaints were not borne out by the contemporaneous records.  Further it was difficult to conceive how work could have impacted upon her health to the extent claimed when she had much time away from the workplace.
  1. [178]
    The email correspondence between Langerak and Casey in this period contained no complaints about lack of training and the claim by her that she was not offered the requisite training in communications work was simply inconsistent with her earlier statements.  On 4 August 2014 in an email to Casey in anticipation of her return to communications she had said "All I really need is a refresher course in QCAD in terms of training".

October  November 2014

  1. [179]
    By 3 October 2014 Langerak had made threats of suicide to QPS staff and thereafter spent little time at work, completely overburdened by events in her personal life.  The effect of these events on her mental health was selfevident and the sheer weight of these issues simply cannot be put in the same category as any alleged lack of training in this period.

Dr Gundabawady

  1. [180]
    On 4 November 2014 Langerak was assessed by Dr Gundabawady after which he reported to the QPS that:
  • he agreed with Langerak that her current workplace had not been supportive and was not helping with her condition.  He disagreed with her capacity to return to fulltime duties unless there was a full remission of her condition and that she should continue to work in an alternate position for at least four to six months; and
  • her psychiatric condition had been impacted by her discontent working at the TPCC and although there had been a good response to the initial treatment there seemed to be a deterioration in her mood and anxiety symptoms after she returned to the TPCC.  The difficulties at the TPCC had impacted on her depressive disorder.
  1. [181]
    In response to the expressions of opinion the QPS wrote to Dr Gundabawady seeking further information to which he replied in the following terms:
  • his views in the earlier report had been only based solely upon the selfreport by Langerak and the reports from the treating Drs Matthews and Kahn; and
  • that in light of the new material that he considered that Langerak had been adequately supported in the workplace.
  1. [182]
    In the course of crossexamination Dr Gundabawady did not accept the position that Langerak's "workplace was a significant factor" because "all the stressors were not consistent.  They all keep changing.  In reexamination when taken to the Bundaberg Hospital record of Langerak's attempted suicide he agreed the history was completely different to what he had been told by her in a subsequent consultation on 17 March 2015 in that it was a "serious incident that could have changed his opinion".

Concluding Remarks

  1. [183]
    The Regulator contended that the close connection in time between the aggregation of personal issues for Langerak in October/November 2014 and her suicide attempt soon after cannot be ignored.  It was also of question whether the failure to find alternate positions or the alleged failure to secure an IME had any bearing on the deterioration of her mental health.
  1. [184]
    The allegation made by Langerak in regards to the lack of training on her return to work on 6 August 2014 had not been made out and it was implausible to suggest that this factor had any bearing upon her mental health problems in late November 2014 in view of the presence of the grievous personal factors at that time.

Conclusion

  1. [185]
    There was no contest that for the purposes of s 11 of the Act Langerak at all relevant times was a "worker" and therefore a person entitled to have, in the circumstances, lodged a claim for workers' compensation.
  1. [186]
    On whether she had sustained a personal injury I am satisfied there was ample medical evidence before the proceedings that at the time of ceasing work at the TPCC on 20 November 2014 she had sustained such injury in the form of a psychiatric or psychological injury pursuant to s 32 of the Act.  This was conceded in submissions on behalf of the Regulator which at paragraph 44 stated:

The medical evidence available from Dr Gundabawady as set out above, establishes that the appellant was diagnosed with a psychiatric condition as at the time of this assessment on 4th November 2014.  Further, it is accepted that the appellant's general practitioner diagnosed "major depression" as a result of her assessment on the 19th November 2014 as referred to above.  Therefore, it is conceded that the issue of injury per se is not in dispute.

  1. [187]
    The Regulator further contended that the:

…weight of evidence does not meet the threshold of establishing that any employment factors amount to the major contributing factor to the onset of any psychiatric condition, howsoever characterised as a primary condition, or and aggravation of some underlying condition.

  1. [188]
    On the evidence before the proceedings it is reasonable to conclude that the personal injury suffered by Langerak had arisen out of or in the course of her employment.
  1. [189]
    Therefore, the matters for determination in this appeal are:
  • was Langerak's employment the major significant contributing factor to the injury; and if so;
  • whether the operation of s 32(5) of the Act excludes the personal injury from compensation on the basis that Langerak's personal injury arose out of reasonable management action taken in a reasonable way by the employer in connection with her employment.

Previous history regarding psychiatric/psychological conditions

  1. [190]
    The evidence adduced from Langerak in the course of the proceedings disclosed in 2009 whilst stationed at Emerald Police Station there was an incident involving fellow police officers, who were off duty at the time, that resulted in a claim for workers' compensation being lodged for what was described as a "workrelated stress injury".  There appears to have been a lengthy period of time where she remained impacted by the condition undertaking various levels of rehabilitation that went through until January 2012.
  1. [191]
    In that period there were a number of postings to a range of locations, in some cases likely to have occurred as a consequence of being unable to fulfil the general duties role in full.
  1. [192]
    There were other stressors experienced by Langerak in 2013 as a result of marital problems and significant financial difficulties.  When questioned on these in terms of how they had impacted on her mental health at the time, replied in crossexamination:

In all due respect, that at the time, yes, financial difficulty and marital problems were a problem.  However since then, they've escalated even worse and I'm not suffering psychological injury. [Transcript p. 184]

  1. [193]
    Suffice to say in the period immediate to her transfer from Mt Isa as a general duties officer to the TPCC there is no evidence, despite her personal circumstances at that time, of a mental health condition that was impacting significantly on her health and wellbeing, that had an effect on her employment.
  1. [194]
    The Regulator had focussed on the personal circumstances at play in Langerak's life between November 2010 and October 2013 with regards to her marital status and subsequent breakdown of the marriage and whilst medical records indicate a level of consultation occurring in that period, as stated previously on transfer to the TPCC in January 2014 it was affected in the absence of mental health concerns that would have prevented such engagement.

Workers' Compensation History

  1. [195]
    There was evidence of Langerak having made numerous applications for workers' compensation between 2009 and January 2014 and it would be more than speculative to suggest that she had a sound knowledge at least in terms of the lodgement of a claim for workers' compensation.

Transfer from Mt Isa to TPCC in January 2014

  1. [196]
    In mid2013 Langerak was a general duties officer stationed at Mt Isa and her (then) husband (also a serving police officer of higher rank) was stationed at Camooweal Police Station.  The evidence from Langerak regarding her marital circumstances at that time was given in a forthright manner and included the following information:
  • she left the marital home in August 2013;
  • she took with her a "couple of pillows, some uniforms and my dog";
  • her husband had been treating her very badly;
  • the financial arrangements with her husband were "extremely complicated"; and
  • she had nowhere to reside following eviction from police accommodation.
  1. [197]
    Langerak acknowledged that she was stressed about finances not knowing how she would manage her situation and had requested a transfer to Rockhampton to be closer to family and friend support, however the transfer available was to the TPCC to commence on 3 January 2014.  In the course of crossexamination Langerak accepted that her personal situation was "pretty dire circumstances" and she had taken to Townsville in January 2014 some "sort of emotional psychiatric baggage".  Nevertheless, Langerak at the time was quite excited about commencing at TPCC even though her preferred option had been to remain a general duties officer.
  1. [198]
    Langerak from the outset found the work to be challenging and felt socially isolated as she did not fit in due to the age demographic of staff.  Other issues emerged in the form of difficulties with two particular sergeants who were said to have bullied and ostracised her.  On the commencement of the employment she undertook three days training on the system operating at the TPCC.  There was assistance provided by Hussey to support her progression to Senior Constable which failed and led to the filing of a grievance by Langerak that was subsequently dismissed.
  1. [199]
    Langerak had contacted Doyle on 11 March 2014 in a highly emotional state, telling her she was not coping because of home and work life, at which time arrangements were made through Doyle for her to see the police psychologist.  On 17 March 2014 Langerak was diagnosed with severe major depression for factors that in the main reflected personal rather than work activities.
  1. [200]
    On 15 April 2014 Langerak was admitted to the Toowong Private Hospital identifying issues other than workrelated as causative of her condition and remained under care until her discharge on 27 May 2014.  Sometime after her release the treating psychiatrist Dr Matthews in correspondence (dated 19 June 2014) stated that he was pleased to report that her treatment had gone well and her mental state was settled such that she was able to return to the workplace.  He confirmed that in his opinion she was medically fit to return to general duties policing but to return her to the TPCC "would be deleterious to her health and welfare".  Dr Matthews in the penultimate paragraph of the correspondence restated his concerns regarding the TPCC having adverse health effects on her.
  1. [201]
    The evidence in respect of Langerak's initial employment at the TPCC for the period 3 January 2014 to 15 April 2014 is in my view persuasive in that it confirmed:
  • her employment circumstances were such that she found her role less than satisfying;
  • her personal circumstances regarding matters involving her (then) husband had caused her a degree of mental angst to the point where she decompensated and was admitted to the Toowong Private Hospital; and
  • whilst there were issues in the workplace they were not relied upon as being causative of her decompensation.
  1. [202]
    Acknowledging that Langerak had a history of having made numerous applications for workers' compensation and was no stranger to that process, I am of the view that the failure to make such an application was confirmation that in respect of these circumstances the issues causative of the condition were personal and not workrelated.

27 May 2014 to 28 July 2014

  1. [203]
    Upon her discharge from the Toowong Private Hospital on 27 May 2014 Langerak began agitating for a return to employment and had provided the QPS rehabilitation coordinator with a medical certificate that cleared her to return to work on 16 June 2014.  The QPS appeared not to have accepted, on the face, the content of the medical certificate and had written to her treating psychiatrist (Dr Kahn) on 12 June 2014 posing a series of questions.
  1. [204]
    In correspondence prepared by Dr Kahn on 19 June 2014 he stated the following opinion with regards to her return to the TPCC:

[Ms Langerak's] prior work in the communications area was a substantial contributing factor to the onset and severity of depression.  Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.

  1. [205]
    Dr Kahn further opined that he was not aware of any clinical reasons that would have prevented Langerak from performing the functions to:
  • make critical operational policing decisions under duress;
  • carry a firearm and make strategic and critical decisions in its use under duress;
  • drive a police vehicle at high speed under conditions of duress.

Further there were no psychiatric impediments to a gradual return to work as a FrontLine Officer in a "safe, efficient and effective manner".

  1. [206]
    At the same time Dr Matthews generated further correspondence that had been forwarded to the QPS in which he supported the return of Langerak to general duties policing (being aware of the QPS view that she remain at the TPCC) and reiterated his previous opinion regarding a return to the TPCC would be "deleterious" to her health and welfare.  He went further to opine that she was suitable to carry a police firearm and operate a police vehicle.
  1. [207]
    The QPS in the period of June/July 2014 continued the theme of Langerak's only employment offer being the TPCC despite the medical advice from two treating medical specialists that such placement would not be in her interests.
  1. [208]
    In evidence the Chief Superintendent Commander (Horton) of the QPS Communications affirmed his involvement in the process, which exhibited he had a full awareness of Langerak's history in the service and he confirmed he had disagreed with the advice from Drs Matthews and Kahn because he had at his disposal a full history of her employment with the service to assist him in reaching that position.  In terms of fitness to carry a firearm that would always be a decision made by senior police not a medical practitioner.
  1. [209]
    There was a plethora of material before the proceedings in terms of emails and other correspondence between Langerak and the QPS (predominantly with Casey) where she had continued to indicate a willingness to return to work and would undertake any role with the exception of the TPCC.
  1. [210]
    On 24 July 2014 Langerak was informed that an Assistant Commissioner would be sending correspondence to her in the form of a "letter of review in relation to her medical condition" which had the effect of putting her into a position where she emailed the Queensland Police Union advising:

Today I was told by an inspector of pcc that I will be receiving a letter of review of my medical condition.

I am highly stressed over this and can't get any other information.

I am worried what it means.  Are they terminating my employment despite me desperately trying to get back to work.  And do I have options because I have been given clearance to return.

I have even told my Dr I will return to comms.

  1. [211]
    Whilst the correspondence was never received by Langerak there was no argument advanced that there had not been an intention for such correspondence to be sent.  I accept Langerak's evidence regarding the effect of the proposed correspondence on her and the view she formed about the potential to lose her job as a Police Officer.  In fact, that is supported by her actions of 28 July 2014 when she "begged" Dr Kahn to sign off on her return to the TPCC because she had no other choice.
  1. [212]
    In the period from 16 June 2014 until 28 July 2014 Langerak had two clearances issued by treating medical specialists to return to work with the QPS, albeit they both warned of the consequences if the placement was to be the TPCC.  There were no medical opinions obtained by the QPS for the purposes of questioning or challenging the opinions of the two treating practitioners, only the reliance on Horton, a person without any medical qualification or background.
  1. [213]
    Whilst I accept the evidence of Casey in that she had endeavoured to source other roles suitable for Langerak in this period the likelihood of that occurring is best measured against the background of Horton's evidence which indicated that such an option was rarely used as it interfered with workforce management.  Further in terms of such placement in response to a question from the Commission he said such a placement could have occurred across the district but would have been a last resort.
  1. [214]
    The evidence in my view points to a level of conduct by the QPS in this time period that reflected an intention to place Langerak only at the TPCC should there be a return to work and a complete disregard for the opinions of medical specialist reports that clearly warned against such a proposal on the basis of concerns for Langerak's health and wellbeing.

4 August 2014 Case Conference

  1. [215]
    A Case Conference occurred on 4 August 2014 in which Kranenburg and Casey participated by way of telephone whilst Langerak attended the offices of Dr Kahn.  The conference was unable to be scheduled sooner due to difficulties experienced by the QPS in being able to confirm a suitable date with Dr Kahn.
  1. [216]
    An interesting aspect of this meeting is the absence of notes taken by participants with the exception of Dr Kahn who in notes referenced matters that included:
  • addressed issues relating to her graduated return to work;
  • advised against night shift (10.00 pm to 6.00 am) for at least two months;
  • recommended that either Kranenburg or Casey attend a meeting with Langerak and her OSO to review status, expectations, needs, etc;
  • endorsed return to training as a good part of her treatment plan; and
  • endorsed graduated return to work outside of graveyard shift.
  1. [217]
    Interestingly in the course of his evidence in the proceedings Dr Kahn offered a significantly contrary recall of the Case Conference in that his decision to sign off on a suitable duties plan for Langerak's return to the TPCC had been a matter of choosing the lessor of two evils in that not to sign off could have led to her being terminated by the QPS.  He recalled also of being informed by Casey that there were no alterative postings available for Langerak.
  1. [218]
    Whilst the contrary recall of the 4 August 2018 Case Conference meeting by Dr Kahn was disturbing, just as equally disturbing was the failure of Casey to take notes in respect of the meeting when there was an abundance of evidence in the proceedings of Casey having meticulously recorded every conversation had with Langerak.  In the course of crossexamination Casey on this very issue of her dealings with Langerak conceded that she kept very careful notes which were comprehensive and exhaustive but had not taken notes of this meeting.  She offered no explanation for the failure to make notes.
  1. [219]
    Langerak gave evidence that she had withdrawn her opposition to returning to the TPCC because of fears regarding the loss of employment upon being informed on 24 June 2014 that she was to receive correspondence from an Assistant Commissioner in the form of a letter of review in relation to her medical condition.
  1. [220]
    There was a claim by the QPS that if Dr Kahn had raised concerns at the 4 August 2014 meeting about Langerak not being able to return to the TPCC they would have arranged for her to undergo an independent medical examination.  There had been consistent opposition on a return to the TPCC, by Dr Kahn in his reports, prior to the Case Management Conference that had not prompted the QPS to genuinely consider sending Langerak for an independent examination and the sudden change in attitude flies in the face of their conduct up to that point of time.
  1. [221]
    On 7 August 2014 Dr Kahn generated correspondence in response to a request from the QPS (Casey) in which he stated:

She is free to return to work according to the graduated return to work plan that we recently agreed upon with the Queensland Police Service.

Thank you for taking this information under advisement and for helping with Ms Langerak's treatment plan.  Please don't hesitate to let me know if you have any questions or concerns, need any further information or if there is something else I might need to do in this regard.

  1. [222]
    The ordinary reading of Dr Kahn's correspondence (dated 7 August 2014) would indicate his support for Langerak's graduated return to work plan to the TPCC and was contrary to his evidence given in the proceedings however in fairness this correspondence must be read in the context of it being a response to a QPS request following the meeting.
  1. [223]
    In any event the outcome of this meeting was an agreement for a suitable duties plan to facilitate a return to the TPCC by Langerak although in the case of Langerak I am satisfied her agreement was made in circumstances where she held genuine concerns that not to return to the TPCC was likely to see her exit from the QPS and that having been placed in that position as a result of conduct by the QPS was prepared to put her health and wellbeing at risk to hold on to her career as a Police Officer.

Appellant's Statement of Facts and Contentions Alteration

  1. [224]
    In a statement of facts and contentions (dated 25 March 2017) the appellant had stated:

At the time of the conference, Dr Khan recommended that the Applicant return to work at a location other than the TPCC.  Notwithstanding the recommendation, the QPS did not offer the Appellant work options other than the TPCC.

  1. [225]
    The appellant sought to replace parts of the initial document in the course of the proceeding with leave granted by the commission resulting in the following addition to the initial document:

Dr Kahn confirmed his view that:

  1. (iii)
    The Appellant should not be returned to the TPCC; and
  2. (iv)
    The risk of relapse of her severe major depressive disorder would be increased by requiring her to return to the TPCC;

The QPS directed the Appellant that she should return to the TPCC.

  1. [226]
    The Regulator raised issues of credibility with regards to the late changes to the statement of facts and contentions, that were reasonably open to be made and around this particular point it does bring into question at least the recall of the 4 August 2014 conference but not to a point where Langerak's or Dr Kahn's credibility would be "shot" altogether.

Appellant's Return to the TPCC 6 August 2014

  1. [227]
    Following the Case Management Conference of 4 August 2014 there was a return to work at the TPCC and as part of that return Langerak was required to undertake at the outset, relevant training for the purposes of upskilling her knowledge and the computerbased application to perform her role in the TPCC.  The evidence would indicate that Langerak's background in the QPS had apart from a period of work in the Communication Centre at Mt Isa had been in general duties and the requirements of the TPCC role most definitely required a different skill set.  Even the limited time spent in the Mt Isa Communications Centre was not helpful due to an antiquated system operated at that establishment.
  1. [228]
    The adequacy of the training was of contest between the parties with Langerak giving evidence that the training package agreed had not occurred apart from sitting next to another employee for a couple of shifts and was not adequate.
  1. [229]
    Hussey gave evidence of Langerak undertaking training on 13 August 2014 and of being informed by the officer providing the training that Langerak was very good at QPRIME and slowing picking up QCAD.  Doyle's evidence about Langerak making numerous errors when using QCAD was accompanied by the qualification that "any persons starts with it, it's quite complicated".  On civilian employees at the TPCC, according to Doyle they received long periods of training but that occurred because of the need to encompass basic training in policing.  The evidence of the QPS falls short of confirming any structured training had been provided.
  1. [230]
    Dr Kahn's notes of the 4 August 2014 meeting had recorded an endorsement for a return to training as a part of her treatment plan which on the face appears to be an integral part of the graduated return to employment for Langerak.
  1. [231]
    The Regulator relied upon the email correspondence between Casey and Langerak following the return to the TPCC on 6 August 2014 not containing any form of complaint from Langerak in regard to not being offered the requisite training in communications which was said to be inconsistent with her evidence.  Langerak had emailed Casey on 4 August 2014 in which she had stated "All I really need is a refresher course in QCAD in terms of training".
  1. [232]
    I am inclined to accept the evidence of Langerak that the training upon her return to the TPCC was so limited that it had failed to even meet the minimal threshold of a "refresher course in QCAD" and there was as a consequence of the failure to provide a level of formal training an impact on her ability to perform her role at the TPCC.  Further it must be remembered that at the point of the initial engagement at the TPCC in January 2014 the level of training was not substantial, being of three days duration, further compounding the situation.
  1. [233]
    In terms of her decompensation following the return to the TPCC, Langerak claimed to have been the subject of bullying by two serving Sergeants of Police (Child and Doyle) in addition to a civilian employee (Hoare).  Child in particular was said to have humiliated her in front of people.  On 11 September 2014 she had approached Hussey regarding issues with Child and Hoare and whilst in evidence he indicated that Child could be "a bit abrupt", "direct" and was "authoritarian" along with Hoare whom he described as a "fairly strong female person" and "doesn't leave you wondering if you don't get on with her", his chosen course of action was to monitor the situation rather than act and had no recall of raising Langerak's concerns with either Child or Hoare.
  1. [234]
    The failure of Hussey, as the officer in charge at the TPCC, to act had been made in circumstances where he acknowledged other persons had previously cited issues with Child's management style and that in 2014 an Inspector of Police had undertaken an investigation of the TPCC operations in which he and Child were among the subject officers.  Further his evidence included that in January/February 2014 there had been certain issues at the TPCC with "strong women" who were still employed there in September 2014.
  1. [235]
    Doyle when crossexamined on the conduct of Child described her as "straight to the point" and in the case of Hoare she was a strong personality who was "loud and direct".  In respect of Child and herself the evidence was that their conduct could have easily been taken as offensive because they were female and it was not the same for the "boys".
  1. [236]
    Langerak had raised her issues with Casey (on 3 September 2014) regarding Child and Hoare at which time she was encouraged by Casey to raise her concerns with Hussey and despite following that advice, her pleas fell on deaf ears without one step being taken to address her concerns, when in reasonable circumstances the least that someone in Langerak's position could have expected would be for Hussey to, at a bare minimum, have spoken to Child and Hoare about their alleged conduct.  To do nothing was not reasonable management action particularly when Hussey was fully aware of Langerak's previous mental health history.
  1. [237]
    Langerak on her return to the TPCC experienced some difficulties in the workplace in that she had been unable to get on with some members of staff and on 18 September 2014 participated in a conference with Hussey and Doyle regarding her failure to meet a satisfactory level of quality assurance having not met the required standard in 12 out of 16 sample calls.  It was according to Langerak the lack of understanding of the system at the TPCC that contributed to her inability to meet the standard.  Prior to the conference with Hussey and Doyle she had sought medical treatment for tiredness due to an unsatisfactory role and ongoing significant financial stress.
  1. [238]
    In the period from 12 September 2014 there was evidence that Langerak still had concerns regarding her financial situation but had continued to present for work and on or around 22 September 2014 had sought to access some unpaid leave due to her father having a serious medical procedure.  On her return to work she experienced some complications in that Dr Kahn had failed to sign off on a return to work plan and it was not until 6 October 2014 that Dr Kahn advised there were no psychiatric reasons inhibiting her return to the workplace.
  1. [239]
    On 3 October 2014 Casey received a communication (phone call) from her manager (McGarry) that Langerak was feeling suicidal which prompted Casey to contact Dr Kahn in the first instance who advised Casey on 7 October 2014 that Langerak was "Psychiatrically cleared to work as part of the treatment plan and return to work".  On 8 October 2014 Langerak informed Casey of previously suffering depression since the bullying incident in Emerald but had still managed to perform her on road duties.
  1. [240]
    Casey advised Langerak on 9 October 2014 that she was to be sent for an independent medical examination on 4 November 2014 due to lack of progress and with her having been suicidal.

IME

  1. [241]
    On referral from the QPS who had provided nine pages of background information relevant to Langerak's employment and medical history covering the period from 2006 until 17 October 2014, Dr Gundabawady examined her on 4 November 2014.  In a report (dated 11 November 2014) forwarded to Casey he stated:

Ms Langerak also provided medical documents from her treating doctors which were not included in documents provided by yourself.

  1. [242]
    The report detailed Langerak's history (as reported by her) with the QPS which can only be described as extensive and included issues that were workrelated and of a personal nature including her failed marriage.  Langerak denied having made comments on 3 October 2014 to a QPS person (Sandra Wickham) about wanting to hurt herself and denied any active suicidal thoughts, intents or plans.
  1. [243]
    Dr Gundabawady responded in all to 16 questions posed by the QPS that included:

How does the employee see her current capacity for work and is it consistent with the presence of a psychiatric disorder?

Ms Langerak sees herself as fully capable of returning to full time duties as a front line police officer.  She is currently working at the Communication Centre.  She is reporting a series of difficulties at her current workplace.  She also reports a lack of family/social support and continues to present with underlying anxiety and depressive symptoms.  Even though she is working full time at the Communication Centre, she reports she is not coping very well in her current workplace.  I do agree with Ms Langerak that her current workplace has not been supportive and is not helping her with her condition but I am inclined to disagree with her capacity with regards to return to full time operational duties unless she has full remission of her condition.  She should continue to work in an alternative position for at least a period of four to six months.

In your opinion, please advise why Ms Langerak has not been able to sustain a robust work history since the 2009 WorkCover incident?  Is it due to the psychiatric disorder, insufficient or incorrect treatment, personality limitations, poor 'coping style', 'sick role' behaviour, psychosocial factors or no motivation to change?

As reported earlier and in the history, Ms Langerak has had a serious of stressors after her first WorkCover incident in 2009.  Her current stressors seem to be the marriage breakup, significant financial difficulties due to the marriage breakup and also stressors at her current workplace.  Certainly I do not think it is sick role behaviour as she is keen to return to fulltime duties, even frontline duties.  I would consider the difficulties she sustained in the workplace were due to her psychiatric condition and the psychosocial stressors.

Is remaining in the employ of Queensland Police Service in any capacity hindering the officer's recovery?

Remaining in the position at the Townsville Communication Centre is affecting her recovery but I think she can return to work in an alternative position other than frontline duties with the Queensland Police Service to help her with her rehabilitation and recovery.

  1. [244]
    The QPS having considered Dr Gundabawady's Report (dated 11 November 2014) wrote to him on 25 November 2014 in which they sought clarification "in relation to some of the documented information supplied to assist in support Ms Langerak".  The QPS attached "additional information on Ms Langerak to assist you formulating responses to the additional questions" that included significant material that would have been available to the QPS at the time of arranging the IME on 9 October 2014 and the failure to have provided that information in the first instance can, in my view, only have occurred through "incompetence" or for more "spurious reasons".
  1. [245]
    Dr Gundabawady provided a Supplementary Report (dated 1 December 2014) based upon a review of the additional information provided by the QPS without any further involvement of Langerak including not affording her the opportunity to respond to the additional material.  In that Report he was required to provide a response to eight questions in all, including:

With the additional information above identifying the support already delivered and current available to Ms Langerak do you still agree with Ms Langerak that her workplace has been unsupportive and not helped her with her condition?

After reviewing the documents provided by yourself outlining support mechanism, I am of the opinion that Ms Langerak has been given all the available support at work.

Do you consider the persistent nonwork related psychosocial factors to be the primary cause of Ms Langerak's medical condition and decompensation to the extent of being unable to perform duties in her substantive position?

  1. If yes, please identify how ongoing adjustments in the work place will elicit a response in a primarily non‑work related medical condition?
  2. What adjustments outside the workplace need to be made by Ms Langerak to ensure improvement in the medical condition?

Nonwork related psychosocial factors are significantly contributing to Ms Langerak's medical condition and decompensation.  Ms Langerak is currently in the process of addressing some of the financial stressors by seeking advice.  The other adjustments outside the workplace would be participating in social leisure/sport activities.

  1. [246]
    It is evident that the Supplementary Report drastically altered the findings of the initial report by Dr Gundabawady and in my view the methodology relied upon by him in preparing the second of the reports was substantially unfair in the failure to apprise Langerak of the additional information and the opportunity to respond to such information.  The Supplementary Report, in the circumstances, in my view contains findings that would attract less weight in my considerations than the First Report which had the appearance of being balanced in that Langerak and the QPS had equal opportunity to present material from their perspectives.
  1. [247]
    In respect of the IME conducted on 4 November 2014 it was arranged at the behest of the QPS who had previously refused to accommodate a request from Langerak as far back as 18 July 2014 to be sent for an IME to determine her suitability or otherwise to return to the TPCC.  There were no reasons offered by the QPS at the time of rejecting the request however in the course of crossexamination Horton had suggested there were not enough "red flags" until November 2014 to warrant the expense of an IME although the QPS had reports from Drs Matthews and Kahn which provided medical opinions such a return to would be a negative in terms of her mental health.

After the IME

  1. [248]
    The evidence indicates that Langerak was still having personal issues with her husband although still turning up for work up until 19 November 2014 when her general practitioner issued a medical certificate stating she was unfit for work.
  1. [249]
    In the period following the issuing of the medical certificate, specifically 25 November 2014, Langerak was admitted to the Bundaberg Hospital due to issues relating to suspected selfharm.  It would appear that the genesis for this incident was related to personal issues and in any event it was beyond the date of her decompensation in the workplace and the issuing of the medical certificate on 19 November 2014 that had rendered her unfit for duty.
  1. [250]
    Langerak never returned to the TPCC following her departure on 20 November 2014 and based upon the findings of Dr Gundabawady was offered employment at the Ross River PCYC on a graduated return to work program that was successfully completed with Langerak ultimately returned to general duties.

Was the employment the major significant contributing factor

  1. [251]
    In the IME undertaken by Dr Gundabawady on 4 November 2014, having reviewed documents provided by the QPS and a history obtained from Langerak he acknowledged there had been a past history of depressive symptoms on the background of work stressors and a previous work incident.  At the time of the IME (4 November 2014) he diagnosed according to DSMIVTR Multi-axial classification system that:
  • Langerak had a Major Depressive Disorder, recurrent, current episode severe in partial remission.  Anxiety disorder not otherwise specified; and
  • Psychosocial and Environment Problems:
  • -difficulties in the workplace;
  • -poor social support;
  • -marriage breakdown; and
  • -financial difficulties.
  1. [252]
    Dr Gundabawady further identified in the report that:
  • he agreed with Langerak that her current workplace had not been supportive and was not helping with her condition;
  • the difficulties at the TPCC had impacted on her depressive disorder;
  • the difficulties she had sustained in the workplace were due to her psychiatric and psychosocial stressors; and
  • remaining in her position at the TPCC would affect her recovery.
  1. [253]
    On the information contained in the IME Report (dated 11 November 2014) which was contemporaneous in respect of her employment in November 2014, I am satisfied that Langerak's employment was the major significant contributing factor to the personal injury that had arisen out of or in the course of her employment at the TPCC.
  1. [254]
    For reasons disclosed previously in this decision, I prefer the findings of Dr Gundabawady's First Report rather than the Supplementary Report that was provided in circumstances that were not conducive to producing an equitable outcome.

Whether the operation of s 32(5) of the Act excludes the personal injury from compensation

  1. [255]
    In assessment of the management action of the QPS globally in terms of the evidence in the proceedings, it would be difficult to make a finding that the manner in which Langerak's return to work was handled in the period 16 June 2014 to 6 August 2014 was reasonable management action taken in a reasonable way for reasons that included:
  • refusal to accept the medical opinions of Drs Matthews and Khan that a return to the TPCC was not in Langerak's best interests in respect of her health without seeking to obtain their own medical opinion;
  • continuing to offer the TPCC as the only return option without genuinely pursuing other placement opportunities; and
  • the rejection of Langerak's proposal to be independently medically examined without providing any reasons first made on 17 July 2014.
  1. [256]
    The conduct of the QPS at this time however is not a matter for consideration as to whether management action had been reasonably taken or otherwise.
  1. [257]
    The QPS had before them at all times information relating to Langerak's employment with the service and more to the point material that confirmed Langerak's case a history of psychiatric/psychological conditions dating back to 2009 and the (then) most recent incident in April 2014 when she was admitted to the Toowong Private Hospital for six weeks with symptoms of a "mood disorder".  They continued to agitate for her return to the TPCC in the face of medical advice to the contrary which had the effect of a protracted absence from the workplace by Langerak whose financial situation at the time was perilous and when faced with the potential review by the QPS of her medical situation described by Casey in an email for 24 July 2014 she decided to return to the TPCC because she had no choice.  That advice was:

I am aware that you are going to receive a letter.  The content of the letter is to provide you with formal options in relation to your medical condition.

Your permanent restriction is a barrier in returning to work in your substantive position at Townsville Communication Centre.

If you provide me with your mailing address and I can organise for this to be sent to you.

  1. [258]
    The Case Management meeting of 4 August 2014 resulted in agreement to implement a graduated return to work plan for Langerak at the TPCC and the QPS relied upon the acceptance of the plan by Dr Kahn as giving them the imprimatur to facilitate such return.  The evidence around that meeting is contradictory and not assisted by the failure of Casey to take notes to support the evidence given by Kranenburg and herself on their recall of what occurred.
  1. [259]
    Dr Kahn and Langerak both evidenced that agreement to return to the TPCC was only reached for fear that not to agree, Langerak would be removed from the service, courtesy of a review into her medical condition.
  1. [260]
    A return to work, is in any event, a return and in this instance it is difficult to make a case that the management action taken after that meeting to return Langerak to the TPCC was not in the circumstances reasonable management action taken in a reasonable way given Dr Kahn's approval, although the conduct of the QPS is questionable when considered against the comments of Hall P in WorkCover Queensland v Kehl[1] where he stated:

There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer.  It is not a matter of suggesting that management should speculate about the psychology of each of its workers if they are engaging in management action which may impact upon particular workers, or should require psychological evaluation of its workers.  It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision. 

  1. [261]
    There are in my view however two areas of the QPS management of Langerak's return to the TPCC on 6 August 2014 and onwards that was not reasonable management action taken in a reasonable way by the QPS in connection with Langerak's employment, that would enliven the operation of s 32(5) of the Act to not exclude her psychiatric/psychological disorder from being compensable.  They were:
  • the failure to provide an adequate level of training to Langerak on her return to the TPCC in August 2014 to ensure that she was fully prepared to undertake her designated role was a blight on the management action of the QPS particularly as there was agreement reached at the Case Management meeting of 4 August 2014, according to Dr Kahn's notes of the meeting, that stated an "endorsed return to training as a good part of her treatment plan".  Langerak complained of inadequate training being provided and relied on the lack of such training as the reason she had failed to reach the acceptable standard in respect of 12 of 16 sample calls requiring her to meet with Hussey and Doyle in a performance review type meeting; and
  • the failure of the QPS through Hussey to act upon allegations of bullying by Child and Hoare particularly in circumstances where he was aware of a history of previous complaints against Child and with the full knowledge of both subject persons conduct in the workplace.  It was totally incomprehensible that even the most basic action of at least raising the allegation with Child or Hoare was ignored with the effect they were free to continue to act in any manner unchecked.  Further compounding this situation was Hussey's awareness of Langerak's vulnerability due to her history of mental health issues.

These two areas of unreasonable management action taken in an unreasonable way in the circumstances fit with the findings of Dr Gundabawady's First Report (dated 11 November 2014) where he identified issues impacting Langerak in the workplace. 

Findings

  1. [262]
    On consideration of the evidence, material and submission before the proceedings the following findings are made:
  • Langerak at all relevant times was a "worker" pursuant to s 11 of the Act;
  • Langerak sustained a personal injury in the form of a psychiatric nature pursuant to s 32 of the Act;
  • the personal injury sustained by Langerak arose out of or in the course of her employment with the QPS with the employment being the major significant contributing factor to the injury; and
  • the operation of s 32(5) of the Act in relation to Langerak's personal injury is not enlivened to exclude the personal injury from being compensable on the basis of a finding that the management action of the QPS was neither reasonable or taken in a reasonable way in connection with her employment.
  1. [263]
    The Appeal is upheld and the decision of the Regulator of 22 December 2016 is set aside.  The claim for workers' compensation is one for acceptance.
  1. [264]
    The Regulator is to pay the appellant's costs of and incidental to the appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
  1. [265]
    I so order.

Footnotes

[1] WorkCover Queensland v Kehl [2002] 170 QGIG 93

Close

Editorial Notes

  • Published Case Name:

    Langerak v Workers' Compensation Regulator

  • Shortened Case Name:

    Langerak v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 35

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    22 Feb 2019

Appeal Status

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

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