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Deshong v Workers' Compensation Regulator[2021] QIRC 205

Deshong v Workers' Compensation Regulator[2021] QIRC 205

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Deshong v Workers' Compensation Regulator [2021] QIRC 205

PARTIES: 

Deshong, Dorothy

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2019/152

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

8 June 2021

HEARING DATES:

3 and 4 September 2020

MEMBER:

HEARD AT:

Merrell DP

Cairns

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 20 January 2021 and 10 February 2021 and Appellant's submissions filed on 3 February 2021

ORDERS:

  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent is confirmed.
  1. Pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003, the Appellant is to pay the Respondent's costs of the hearing.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision of the respondent – psychiatric or psychological injury – where the worker was employed as a fly in/fly out counsellor – where worker claims her injury was caused by a verbal attack by her supervisor and the failure by her employer to take action to provide her with a safe workplace upon her impending return to work – whether worker's employment was the major significant contributing factor to her injury – whether the worker's injury was withdrawn from being a compensable injury because it arose out of or in the course of reasonable management action taken in a reasonable way in connection with the worker's employment within the meaning of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – review decision of respondent confirmed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

CASES:

Blackwood v Mana [2014] ICQ 027

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519

State of Queensland v Q-Comp [2010] ICQ 6

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097

State of Queensland (Queensland Health) v QComp and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

APPEARANCES:

Ms D. Deshong, the Appellant in person.

Dr M. Brooks of Counsel directly instructed by Ms R. Jamieson of the Respondent.

Reasons for Decision

Introduction

  1. [1]
    The Apunipima Cape York Health Council ('the Health Council') is a notforprofit organisation providing primary health care services in 11 communities across the Cape York region. Ms Dorothy Deshong was employed by the Health Council as a Social and Emotional Wellbeing Counsellor. Ms Deshong was employed by the Health Council from April 2017 and her position required her, as a Fly in/Fly out worker, to work in Hope Vale four days per week and to work in Cairns one day per week.
  1. [2]
    To travel to Hope Vale, the Health Council organised for Ms Deshong to fly from Cairns to Cooktown and then, on the occasions when there was no one for her to share a motor vehicle, Ms Deshong would drive herself from Cooktown to Hope Vale in a fourwheeldrive belonging to the Health Council; a journey of 40 minutes.
  1. [3]
    Ms Deshong appeals against the review decision of the Regulator dated 1 August 2019 which confirmed an earlier decision of WorkCover Queensland to reject Ms Deshong's application for workers' compensation.
  1. [4]
    Ms Deshong, in this appeal, contends that she has suffered a work-related psychological injury. There is no dispute that Ms Deshong suffered a personal injury, being an adjustment disorder with mixed depression and anxiety.[1] Ms Deshong nominates eight events that occurred between 20 March 2018 and 15 October 2018 that she contends had a causal connection with her personal injury. In summary, those events are:
  • the verbal assault on Ms Deshong by her team leader and the subsequent treatment by that team leader of Ms Deshong;
  • the failure of the Health Council, following Ms Deshong lodging an incident report about the verbal assault, to take any immediate action;
  • the Health Council's management of Ms Deshong following a nonwork-related injury to her shoulder; and
  • the failure of the Health Council, upon Ms Deshong's return to Hope Vale after a period of time off work, to implement safety measures that she had requested.
  1. [5]
    There is no dispute that Ms Deshong was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act'). The Regulator accepts that Ms Deshong's personal injury arose out of or in the course of her employment within the meaning of s 32(1) of the Act.[2]
  1. [6]
    As a consequence, there are two areas of dispute between the parties. They are:
  • was Ms Deshong's employment the major significant contributing factor to her personal injury?[3] and, if so
  • did Ms Deshong's personal injury arise out of or in the course of reasonable management action taken in a reasonable way in connection with her employment?[4]
  1. [7]
    For the reasons that follow, my view is that Ms Deshong's employment was the major significant contributing factor to her personal injury, but that her personal injury arose out of or in the course of reasonable management action taken in a reasonable way by her manager. That management action was not allowing Ms Deshong to return to fulltime work on a permanent basis following the non-work related injury to her shoulder and the steps her manager was prepared to take upon Ms Deshong's return to Hope Vale following her shoulder injury.

The Act and the relevant legal principles

  1. [8]
    An appeal of this type is a hearing de novo[5] of the issue determined by the review decision.[6] The issue determined in the Regulator's review decision was that Ms Deshong did not suffer an injury within the meaning of the Act. The onus is on Ms Deshong to prove, on the balance of probabilities, that she has suffered an injury within the meaning of the Act.[7]
  1. [9]
    In addition to a psychiatric or psychological disorder having to arise out of or in the course of employment, for such an injury to be compensable, the employment must be '… the major significant contributing factor to the injury.'[8] That requirement removes the possibility that an application for compensation, for such an injury, could be accepted where the employment was simply one of a number of significant contributing factors to the injury.[9] While a number of factors could contribute to a worker's psychiatric or psychological disorder, the worker's application for compensation will only be accepted if their employment was the major significant contributing factor to their disorder.[10]
  1. [10]
    If Ms Deshong's injury is one as described in s 32(1)(b) of the Act, then s 32(5) must be considered.[11] In the present case, the Regulator contends that if Ms Deshong's employment is the major significant contributing factor to her personal injury, then her injury is withdrawn from being a compensable injury because of the application of s 32(5)(a) of the Act.[12]
  1. [11]
    Section 32(5)(a) of the Act provides:
  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. [12]
    Section 32(5)(a) of the Act only operates to remove a psychological disorder from the statutory definition of 'injury' where reasonable management action is taken in a reasonable way.[13]
  1. [13]
    In State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator,[14] I summarised the relevant principles in respect of the application of s 32(5)(a) of the Act:[15]

[22]  In order for s 32(5)(a) of the Act to apply, three things must be shown, namely:

 that there was reasonable management action; and

 that it was taken in a reasonable way; and

 that the 'action' gave rise to the disorder.

[23]  The correct enquiry is not whether or not unreasonable management action was the dominant cause of the injury. The phrase 'arising out of' in section 32(5)(a) of the Act can be readily understood, when combined with 'reasonable management action,' as requiring the demonstration of a causal relationship; and the phrase 'in the course of' in section 32(5)(a) of the Act generally requires a temporal connection.

[24]  The task for the Commission, when applying s 32(5)(a) of the Act, does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way; and sometimes that may involve consideration of what else might have been done however that will only be relevant to whether what was done was, in fact, reasonable.

[25]  The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.

[26]  Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.

[27]  Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.

[28]  However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury. In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable. However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.

[29]  Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.

 The eight stressors

  1. [14]
    Ms Deshong contends that eight stressors had a causal connection with her personal injury. Ms Deshong's list of stressors, as set out in her statement of facts and contentions is:

STRESSORS

No.

Date

Title

Description.

1

20.03.2018

March

Assault

I was the victim of a violent act of verbal abuse and intimidation. The incident took place in the open at my premises A/H. My attacker was my Team Leader (Doreen Hart). The abuse was loud and was witnessed by my neighbours and other staff members. I felt traumatised after the attack.

 

2

21.03.2018

Day off.

At work Doreen refused to acknowledge my presence and rudely waved me away when I said good morning. I had not slept the night before so went to Medical Centre. My blood pressure was recorded as very high 174/101 and my sugar was very high at 18. I knew this was caused from the previous days attack. I took the rest of the day off as sick leave.

 

3

22.03.2018

Return Home

I returned home to Cairns told my family of the attack and spent most of evening crying.

 

  1.  

23.03.2018

Incident Report

I Lodged my Incident Report with HR. I was upset that my employers did not offer professional counselling support or time off and No Immediate Action was taken.

 

5

15.05.2018

Shoulder Injury.

 

Injured my shoulder in an out of work accident.

6

July 2018

ADCQ

ADCQ investigation began regarding Management action of my shoulder injury.

 

7

05.10.2018

Response to my safety request.

2 days after I had lodged a request for safety implementations prior to returning to work in Hopevale my request was refused. I was also Informed action on my complaint would be further delayed and I would be returning to Hopevale under the supervision of my assailant (Doreen Hart).

 

8

15th October

Collapse at Airport.

While waiting to board my plane my fear of facing my attacker; fear of being under the control of my attacker; fear for my safety after hours; lack of faith in management & the pressure of the ADCQ case became overwhelming. The fear led to an extreme public panic attack and Mental Health breakdown.

Was Ms Deshong's employment the major significant contributing factor to her personal injury?

  1. [15]
    The answer to this question requires a consideration of all the evidence in relation to the eight stressors nominated by Ms Deshong, as well as a consideration of the expert evidence she led.

The first stressor - 20 March 2018

  1. [16]
    When Ms Deshong worked for the Health Council in Hope Vale, she resided in a unit provided by the Health Council.[16]
  1. [17]
    Ms Deshong contends, in respect of this incident, that:
  • she was the '… victim of a chargeable offence';[17]
  • the abuse was loud and was witnessed by her neighbours and other staff members;[18] and
  • in the incident report she:
  • detailed her trauma during, what she now knows to be, '… a serious and chargeable offence'; and
  • described how 'the assailant' entered her premises with intent of committing the offence, proceeded to commit the offence and entered her premises in the company of another person with the intent to commit 'the crime'.[19]
  1. [18]
    Ms Deshong's evidence was that on 20 March 2018 she was in her residential unit in Hope Vale, sitting at a table on the balcony after she had finished work and having a cigarette, when Ms Hart drove over to her house, got out of her car and started yelling at her.[20] Ms Deshong stated that:
  • after the whole incident, she sat there until Ms Hart's car was gone and it was not until the car was out of sight that she broke down and '… all the emotions flooded over me in one hit';[21] and
  • she went into shock, later on that night she could not eat, could not sleep and that her stomach was 'just churning from nerves'.[22]
  1. [19]
    Exhibit 1 was the incident report that Ms Deshong drew in relation to the incident on 20 March 2018. In that report, Ms Deshong set out, in significant detail, what had occurred leading up to and during the incident described in her evidence-in-chief. The incident report was emailed by Ms Deshong to Human Resources at the Health Council on 26 March 2018.[23]
  1. [20]
    In that incident report, Ms Deshong referred to the circumstance where the day before, on 19 March 2018, a new permanent nursing staff member, Ms Johanne Tully, was employed by the Health Council and who was to share the unit occupied by Ms Deshong when she resided in Hope Vale. Ms Deshong reported that when Ms Tully arrived at the unit, she (Ms Tully) stated that it smelt as though someone had been smoking in it and, that evening, Ms Tully began '… frantically cleaning everything that I had already cleaned'. The next day when Ms Deshong attended work, Ms Hart informed Ms Deshong that Ms Tully had made a complaint about the unit smelling of cigarette smoke and being filthy. Ms Deshong also stated that at that point, Ms Hart also gave her '… another lecture about smoking.' Ms Deshong's evidence was that when she went home after work, she was feeling '… very hurt and angry.'[24]
  1. [21]
    Ms Deshong then recorded what occurred when she arrived back at the unit after work on 20 March 2018:

When Johanna said hello she was very cheery and sweet, just as she had been in the morning. She behaved as if nothing had happened. This made me angry, so it was with great constraint and lowered voice that I sternly replied with the following dialogue.

D. "Don't speak to me"

J. "what"

D. "Don't speak to me. I don't want to talk to you".

J "what's wrong?

D." I am not very happy about what you did this morning"

J." What did I do

D." I bent over backwards to welcome you. I couldn't have been nicer. I thought things were good.

Then you raced off first thing in the morning to put in a complaint about me to my Boss. Who does that?

J. "No I didn't do that."

D." Yes you did, Doreen has already told me. Why did you do that? What sort of creature are you? I am beginning to think that maybe you are just racist and didn't want to share with me.

Again Johanna said, "I didn't put in a complaint about you".

END OF CONVERSATION. Johanna did an about turn and headed back over towards the WBC.

Neither of us spoke a word to each other after that.

I saw Johanna later talking to a couple of people on the veranda of the WBC I could only presume one of them was Doreen.

I remained seated where I was and anticipated that I would receive a call from Doreen asking me to join her and Johanna at the WBC to have a civil discussion, and resolve the matter. That would have been the proper professional protocol to use, and the most logical. That did not happen.

Instead: Approx. 5-10 minutes later Doreen pulled up in her car beside the unit. She had Johanna with her. Johanna went into the unit via the front door. Meanwhile Doreen headed in my direction to the back veranda. Doreen was already shouting loudly at me before she even reached the steps.

She shouted:

"What did you say to Johanna? What did you say" (The tone and delivery showed that this was not a question it was an accusation)

I remained sitting and asked (not yelled). "What is it you think I said Doreen"

Her response was "You threw racist comments at her, you should know it's not right to do that." Again it was not a question. It was an accusation, and I was really taken aback because;

  1. I have made it well known that I abhor racism, regardless of who it is against, and I will not join in no matter how many of my peers may do it.
  2. The father of my children and also my present partner of 12yrs are non-indigenous, so the idea that I would make racist comments against white people was ridiculous and hypocritical.
  3. I was shocked that Doreen not only believed I would do it she openly and publicly accused me of it in front of witnesses.

My reply to her accusation was a straight out "No Doreen That is Bullshit I did not make any racist comment to Johanna".

Doreen's response was to go on another loud tirade about my smoking. This too was in front of witnesses and neighbours. This time it was in regard to my smoking on the back porch of my accommodation. Doreen also dragged up an incident from early last year when she said she smelled smoke in my unit. (She has been in my unit many times since then and never mentioned smelling smoke) Doreen also demanded I go out to the road to smoke, irrespective of any rain, or dogs or darkness or snakes.

When I asked if this rule was also being applied to the men, she said yes. But I know it is not true because one of the men (a smoker) has told me that men are never harassed about smoking or told to go out to the road to smoke after hours.

I asked Doreen if I could please have a chance to speak on my behalf.

Her response was "You can have your chance in your report. I want you to do up an incident report on this matter tonight."

Doreen's last words to me before getting back in to the car with Johanna were. "I have enough problems at home to deal with. I shouldn't have to worry about sorting out my staff too."[25]

  1. [22]
    Ms Deshong's further evidence-in-chief was that one of the first things she did after 'the attack' was to contact her daughter and that, when she did, she just cried and told her what went on. Ms Deshong also stated that she spoke to her partner that same evening.[26]
  1. [23]
    In cross-examination, Ms Deshong agreed that the Health Council ran an indigenous tobacco awareness program and was trying to discourage smoking generally within the community.[27] It was put to Ms Deshong that if the Health Council had a tobacco awareness program run by its staff, it would look bad if people were smoking around the Health Council's buildings. Ms Deshong stated she did not want to answer that question.[28]
  1. [24]
    In further cross-examination, Ms Deshong:
  • agreed that she knew she was not supposed to be smoking inside the unit;[29] and
  • stated that she and Ms Hart had a difference of opinion about smoking in the vicinity of the unit.[30]
  1. [25]
    Ms Pamela Colquhoun-Kepper is Ms Deshong's daughter. Ms ColquhounKepper's evidence-in-chief was that:
  • on the evening of 20 March 2018, she received a highly emotional phone call from her mother;[31] and
  • since the incident on 20 March 2018, she observed that her mother became emotional and cried a lot.[32]

The second stressor - 21 March 2018

  1. [26]
    Ms Deshong's evidence was that the next day she went to work and she was quietly hoping that Ms Hart would calm down and apologise, but that did not happen.[33]
  1. [27]
    Ms Deshong stated that:
  • she attempted to say good morning to Ms Hart who, in response, '… just put her hand up with the stop sign and walked away';[34]
  • she then went to the medical centre and had her blood pressure and sugar levels tested as she was diabetic; and
  • both her blood pressure and sugar levels were 'very high', in respect of which the doctor then gave her a medical certificate and she went back to her residential unit for the whole day.[35]

The third stressor

  1. [28]
    On the day after the incident comprising the second stressor, being the day Ms Deshong was to fly home to Cairns, she went to the office, however, Ms Hart was not in the office that day.[36]
  1. [29]
    Ms Deshong then flew back to Cairns and when she got home, she was tense the whole time and nervous because she thought somebody in the office would say something. Ms Deshong further stated that when she got home and she was able to be around her family, she broke down, following which she wrote up the incident report.[37]

The fourth stressor

  1. [30]
    At the conclusion of the incident report, Ms Deshong stated:

Footnotes:

Two other staff members plus several neighbours were able to hear and see Doreen berate me, even though I am not sure how clearly they heard the words. I know this because I could see them and I felt shamed.

Doreen went back to the car and spoke with both Anneke and Casey, before her and Johanna got back in the car and left. I remained seated for a very long time.

I obeyed Doreen's demand and walked to the end of the lane that night and stood in the rain to have a smoke to help calm me. The result was that a dog kept barking at me and 2 people asked me why I was standing there. They were not impressed, but were sympathetic, when I explained that I did not have a choice.

I still have no Idea what Johanna said to Doreen or what I am accused of saying as I was not respectfully asked any questions or given a chance to respond. I was so distressed I was unable to sleep until around 5:00 am that night. I was too fatigued and my health suffered the next day.

I went in to the office to let Doreen know I could not come to work, and to get my Blood pressure and sugar tested. Doreen turned her back to me and waved me away. She would not speak to me.

I had my obs taken by Georgia Gibson AHW. I generally have a high blood pressure, but it was very high 174/101 that morning and my sugar was 18.

Summary:

I feel that the situation between Johanna and I was badly handled. Doreen's behaviour was totally inappropriate (Especially for a Team Leader). I also felt shame and embarrassment for the public way it was done.

I am feeling very distressed and stressed not only as a result of this incident, but from the many previous incidents where Doreen has falsely accused me of things, or taken her bad moods out on me.

I would like this report to be treated as a Workplace Bullying and Harassment report as this treatment is not a one off, and I can provide further evidence to support this. I can also provide evidence of occasions where Doreen has restricted me from performing my duties in the workplace.

I believe the reason I am singled out, and bullied is because I am the only Indigenous Apunipima employee who is not related to Doreen by blood or marriage. This means that I cannot seek support or protection from other members of her family.[38]

  1. [31]
    Ms Deshong contends that after receiving her incident report, the Health Council failed to ask the 'standard questions' of:
  • whether she intended or wanted to press charges;
  • whether she needed professional counselling support; and
  • whether she needed any time off work.[39]
  1. [32]
    Ms Deshong also contends that 'no immediate action' was taken by the Health Council.[40]
  1. [33]
    Ms Deshong then contends:

7. Two weeks after I was assaulted, my assailant (Doreen Hart) was hospitalised with an illness. There had still been no action taken in my complaint.

8.  I offered to postpone action in my complaint until Doreen was able to return to work.

  1. [34]
    Ms Deshong further contended that Ms Hart returned to work sometime shortly after her (Ms Deshong's) shoulder injury which she sustained, out of work, on 15 May 2018 and that as she waited for clearance to return to full-time work, there was a threeweek period where both Ms Hart and Ms Deshong were back at work, though not facetoface, and that no steps were taken by the Health Council to action her complaint during those three weeks.[41]
  1. [35]
    Ms Deshong's evidence-in-chief was that:
  • she emailed the incident report to Human Resources and to three other persons who were her managers;[42]
  • in the following week, after she emailed the incident report, she (Ms Deshong) was unable to return to Hope Vale because of flooding and that she worked in the Cairns office for that week; and then the week after that, when she returned to Hope Vale, Ms Hart was not at work because of illness;[43]
  • nobody approached her about the subject at all even though all of her managers were in the office and nobody even asked how she was feeling over the next seven months which caused her to become paranoid;[44] and
  • after she was informed of Ms Hart's illness and that Ms Hart may pass away due to her illness, she offered to postpone the investigation of the incident until Ms Hart was able to return to work, but that even after Ms Hart returned to work including periods where both she and Ms Hart were in the workplace over the next five months, no one said anything to her about the incident which resulted in a detrimental effect on her mental state, her breaking down in tears during a meeting with Ms Tien Chapman of Human Resources, and her (Ms Deshong) asking for the contact numbers for the Employee Assistance Program ('EAP'), which ultimately resulted in her seeing Mr Kevin Colahan, Psychologist.[45]
  1. [36]
    In 2018, the Human Resources Manager for the Health Council was Ms Allison Wallace. Ms Wallace's evidence was that:
  • from her recollection, she was aware of the complaint made by Ms Deshong about Ms Hart; and
  • because Ms Deshong had been away from work from about May 2018, with her injured shoulder, the Health Council took no action in relation to the matters set out in the incident report because, in general, the Health Council does not contact people in relation to such matters if they are away due to illness so as not to aggravate their condition in any way.[46]
  1. [37]
    In cross-examination, Ms Wallace's evidence was that Ms Chapman, who was a Human Resources advisor at that time, spoke to Ms Deshong about her complaint about the incident of 20 March 2018.[47]
  1. [38]
    Furthermore, when cross-examined about whether the complaint was investigated or acted upon in the seven months between March 2018 and October 2018, Ms Wallace's evidence was that:
  • she was aware that the investigation had commenced, but shortly after that, Ms Hart was hospitalised with an illness, then at that point in time Ms Deshong informed the Health Council that she was comfortable with the investigation being put on hold until Ms Hart was released from hospital and, after that time, Ms Deshong was off work following her shoulder injury;[48] and
  • as she stated earlier in her evidence, the Health Council does not contact people when they are off work due to illness or on annual leave and that it puts the matters in suspension for that period because it does not want to create any stress when people are away from the workplace due to injury, illness or annual leave and so her (Ms Deshong's) complaint was put on hold until she (Ms Deshong) returned to the workplace.[49]
  1. [39]
    Despite her evidence above, Ms Wallace stated that she could not recall seeing anything where Ms Deshong was interviewed or that the information contained in Ms Deshong's complaint had been confirmed with her.[50]
  1. [40]
    Ms Deshong cross-examined Ms Wallace about the actions the Health Council took following Ms Hart's return to work after her illness. It was suggested to Ms Wallace that in the seven months after the incident of 20 March 2018, there were five occasions when she (Ms Deshong) and Ms Hart were at work to address the incident and she questioned Ms Wallace as to why the matter was not dealt with on at least one of those occasions.[51] Ms Wallace's response was that:
  • to the best of her recollection, there was a period of time where Ms Deshong was at work in the Cairns office for a period of three weeks for the purposes of training and that time was not to undertake other discussions about other aspects of her work;
  • the Health Council did not want to keep Ms Deshong out of hours to have further discussions in relation to the investigation of her complaint which was suspended until she could return to work on a more permanent basis; and
  • as part of any investigation, it may be the case that a complainant may not need to be spoken to until discussions have been held with the other parties.[52]
  1. [41]
    Ms Deshong also suggested to Ms Wallace that the management of the Health Council were concerned that she would press charges against Ms Hart. Ms Wallace's response was that Ms Deshong stated that she (Ms Deshong) wanted the incident report treated as a workplace bullying and harassment report and that that was the first time she (Ms Wallace) had heard that the matter should be managed through the police.[53]
  1. [42]
    Ms Deshong also put to Ms Wallace that she ordered that staff were not to open up dialogue with her (Ms Deshong) because doing so would commence an investigation and that the Health Council needed time to find a way to 'cover the whole thing up and make it just disappear'. Ms Wallace denied that suggestion and stated that she had never issued any such orders and that no such directive was issued to members of her team.[54]

The fifth stressor

  1. [43]
    Ms Deshong contended that on 15 May 2018, she sustained an out of work shoulder injury '… which resulted in my employers [sic] not allowing me to return to full time work until Oct 8th 2018' and the Health Council's treatment of her surrounding the physical injury became '… an ADCQ investigation which was resolved out of court in 2019.'[55]
  1. [44]
    There is no dispute about those precise facts.
  1. [45]
    Ms Deshong further contended that she returned to work sometime shortly after her shoulder injury.[56]
  1. [46]
    Exhibit 6 is a bundle of five medical certificates and reports from general practitioners, the effect of which is that due to her right shoulder injury:
  • Ms Deshong was not fit for work from 19 May 2018 to 26 May 2018;[57]
  • from 24 May 2018, she could return to work on light duties provided she did not drive or lift anything for the next two weeks;[58]
  • from 25 June 2018, she was able to return to work as a clinical counsellor on light duties, performing tasks such as typing and computer work, but was unable to engage in any heavy lifting activities;[59] and
  • from 27 June 2018, she was able to resume work doing light duties but avoiding lifting weights heavier than 1 kg.[60]
  1. [47]
    Exhibit 5 is a medical certificate from the Cairns Base Hospital dated 24 May 2018 stating that Ms Deshong was suffering from a medical condition and that she was only fit for light duties for at least four weeks.
  1. [48]
    In cross-examination, Ms Deshong agreed that:
  • she provided Exhibit 5 to the Health Council;[61]
  • she was not supposed to lift anything over 2 kg in weight with her right hand;[62]
  • because of that restriction, the Health Council decided she could not undertake light duties at Hope Vale because she would have to travel to Cooktown in a light aircraft with her luggage, and then drive to Hope Vale;[63]
  • it was a requirement of the Health Council that all counselling be face-to-face and that she would travel out and about from Hope Vale or Cairns to provide counselling if a community member was outside of the community for whatever reason;[64] and
  • the Health Council decided it did not want Ms Deshong flying on a light aircraft and driving and could not accommodate her performing work full-time or parttime on light duties in Cairns.[65]
  1. [49]
    Ms Wallace gave evidence about the decisions of the Health Council concerning Ms Deshong's attendance at work following her right shoulder injury. Ms Wallace's evidence was that:
  • following Ms Deshong's right shoulder injury, she was incapacitated, was not able to return to work at all and was providing medical certificates that had some fairly strict conditions around her return to work, and the Health Council was unable to return her to work with those strict limitations;[66]
  • the Health Council is funded to provide face-to-face counselling services;[67]
  • in respect of the medical certificates provided by Ms Deshong that she could engage in light duties, the Health Council decided that because her role in the community was to provide face-to-face counselling and because the work that she could have performed in the Cairns office, such as updating program materials, had been done by other staff on return to work programs, there was no further project work or meaningful work that it could provide to Ms Deshong, with her skill set, in the Cairns office;[68]
  • because of the restrictions placed in the work certificates provided by Ms Deshong, there was no other work in other locations involving travel that Ms Deshong could have performed;[69] and
  • each time Ms Deshong provided a medical certificate, the Health Council would check to see if there was any work available that she could perform; and prior to her being medically cleared to return to full-time work at Hope Vale in October 2018, the only work that she could perform, that was made available to her, was some management and leadership training, conducted over three separate weeks over a three-week period because there was no risk in her performing that work.[70]
  1. [50]
    The facts are that following Ms Deshong's injury to her right shoulder on 15 May 2018, for the reasons given above by Ms Wallace, the Health Council did not permit Ms Deshong to return to work, either full-time or part-time, either at Hope Vale or the Cairns office, other than for the three separate weeks where Ms Deshong undertook the management and leadership training in the Cairns office.
  1. [51]
    Apart from those three separate weeks, Ms Deshong did not work for the Health Council after 15 May 2018. As referred to below, on 3 October 2018, Ms Deshong was provided with medical certification that she was fully fit to be able to travel and work for the Health Council at Hope Vale and that ultimately she was to recommence employment at Hope Vale on 15 October 2018 and was due to fly out from Cairns on that day.

The sixth stressor

  1. [52]
    There is no dispute about the facts of this alleged stressor. Ms Deshong's claim of unlawful discrimination to the Anti-Discrimination Commission Queensland ('ADCQ') concerned the management of her by the Health Council following her shoulder injury.
  1. [53]
    Ms Deshong alleged that the decisions made by the Health Council meant that she was the subject of unlawful discrimination, the consequence of which was that she made a complaint to the ADCQ.

The seventh stressor

  1. [54]
    In respect of this stressor, Ms Deshong contends that:
  • on 3 October 2018, she was cleared to be physically fit to return to full-time work on 8 October 2018, however, due to an administrative error on the part of the Health Council, her flights were not booked, she was required to stay home for three days, for which she was paid, and to then return to the Cairns office on 11 October 2018;
  • due to there still being no action taken in regard to her complaint and because she was experiencing the effects of post-traumatic stress disorder, she submitted a document on 3 October 2018 which:
  • outlined her 'trepidation' and her fears in returning to Hope Vale under what she believed to be semi-hostile conditions; and
  • listed the safety measures she was seeking to be put in place;
  • on 5 October 2018, Ms Wallace informed her that her request 'was refused' and that she would be returning to her role with the usual duties that applied prior to her shoulder injury, that her incident report would not be dealt with until sometime after her return to Hope Vale and that she would be under the supervision of Ms Hart; and
  • her flight to Hope Vale was booked for 15 October 2018 and that it had been seven months since she had had any contact '… with the perpetrator.'[71]
  1. [55]
    The evidence is that by email dated 3 October 2018 to the Health Council, Ms Deshong attached a report from Dr Parveen Kumar which included a report from Ms Deshong's physiotherapist. The effect of the report was that Ms Deshong was declared fully fit to return to work at Hope Vale.[72] Attached to that email was a document from Ms Deshong headed 'RETURN TO WORK CONDITIONS.' That document provided:

I am fully aware that when I return to work I will realistically; most likely be working under semi Judgment-Imagehostile conditions. These will be as a result of

  1. My ongoing discrimination complaint. (Resentment from those involved)
  1. My Bullying and harassment complaint against Doreen Hart. (Which has not yet been addressed)
  1. The damage to my professional and personal reputation which has come about due to false gossip surrounding my absence. (This gossip has been relayed to me from both staff members and community people).

Due to my still needing an income, and my unfailing desire, to continue helping people from my Indigenous Culture I am prepared to continue working for Apunipima. However I have listed a few simple requests I would like management to consider putting in place to avoid exacerbating, my present level of anxiety and stress and to regain a sense of self-worth.

Firstly I need to continue to deliver services to my appointed position in Hopevale Community. This is necessary if I am to be able to salvage my Professional reputation. I request that management addresses my complaint against Doreen Hart as soon as possible with proven action. I ask this so that I am no longer subjected to her abuse or unfairly singled out for blame and admonishment by her. I would like to be treated with the same respect and professional acknowledgement that is given to other Wellbeing Centre Counsellors Including the non-Indigenous Counsellors. In particular I wish to cease being ordered to put my duties on hold to perform other staff members' roles, or be their lackeys.

My intention when I return to work is to fastidiously follow all rules and regulations and comply to all reasonable directives, given to me by management only. This is provided they do not conflict with my Ethical practice standards. In accordance with my duty statement I would like to put more focus on delivering my services to WBC clients and the people in Community. I am hoping that by doing this I can create a productive work environment for myself which with as little drama as possible.

Through this present experience I have discovered that it is extremely difficult to give top quality work performance if I am subjected to micromanagement. It is also difficult if I have to be constantly wary of those Staff who have proven they wish me harm. For my own protection in going forward and to avoid a repeat of mistreatment; I request that I be allowed freedom to keep a record of every directive given to me by my managers, whether it is an audio or written record.

To help me recover from my present work related emotional injuries, I will need to continue seeing my therapist on Fridays. Therefore I would like to continue to return to Cairns on the Thursdays.

I am willing to negotiate these requests with Apunipima provided I am given a written and signed copy of the agreement. [73]

  1. [56]
    Ms Wallace responded to Ms Deshong by email dated 5 October 2018, in which she relevantly stated:

Hi Dorothy,

Thank you for your email and for providing a full medical clearance for your return to usual duties. We are pleased that a full clearance has now been received and you can return to Hopevale in your usual role.

In terms of your letter titled "Return to Work Conditions", now that you are medically fit, I wish to make it clear to you that you will be returning to your usual role and will be performing your usual duties under the same terms, conditions and administrative requirements as prior to your injury. There is no basis upon which we will need to put in place a written, signed terms of return to work. The only impediment to your return to work to date has been your physical limitations. Now that you are physically fit to return to work, your usual terms and conditions of work will be in place.

I am aware that your bullying complaint concerning Doreen Hart has not been finalised due to your extended absence. Similarly, a separate complaint concerning Johanne Tully has also not been able to be resolved. These outstanding complaints will be dealt with in due course, now that you are fit to be back at work.

While I understand your hesitation in returning to work given the status of legal proceedings, I can assure you that your discrimination complaint has been kept confidential, and there have been no negative comments concerning your absence. Instead, it is well known that you have been absent simply as a result of a physical injury.

It is expected that all employees will at all times adhere to the organisation's requirements and expectations, for performance, behaviour and service delivery, in accordance with the Employee Code of Conduct. If at any time following your return to work you have reason to consider that you are experiencing "semi hostile" conditions, please let me know immediately and I will ensure that it is investigated and addressed in accordance with our policies and procedures.

  1. [57]
    In her evidence-in-chief, Ms Wallace stated that after the Health Council had received notice from Ms Deshong that she had a full clearance, she (Ms Wallace) notified her (Ms Deshong) in an email that the Health Council's Operations Coordinator would be in contact with her to let her know of the travel arrangements. However, because of the Operations Coordinator's absence, Ms Deshong's travel was not organised at that time, the consequence of which being she was paid her salary for that week, she worked in the Cairns office on the Thursday and Friday where she undertook one-on-one training with one of their educators, and she was provided with a handover process of her clients and case management by the counsellor who had been taking Ms Deshong's caseload during her absence.[74]
  1. [58]
    Ms Deshong's evidence-in-chief was that in her email to Human Resources, she was reaching out for help but the answer that she got back within two days was that Ms Wallace had not even thought about it.[75] Ms Deshong further stated that she wanted to talk to Ms Wallace but Ms Wallace did not want to talk to her and so she could not be assured that people were not talking about confidential matters.[76] Ms Deshong also stated that the reference to Ms Tully's complaint in Ms Wallace's email, being a matter of which she said she had no knowledge, caused her more anxiety.[77]

The eighth stressor

  1. [59]
    In respect of this stressor, Ms Deshong contends:
  1. On 15th Oct 2018 while waiting to board my morning flight back to work in Hopevale I suffered symptoms of Post Traumatic Terror due to the following triggers:
  1. (A)
    The assault itself had traumatised me with repeated nightmares.
  2. (B)
    Being ordered to face my attacker in a remote area without support invoked fear.
  1. (C)
    Being ordered to work under the control/supervision of my attacker increased fear.
  2. (D)
    Refusal to negotiate my work requests; plus lack of action on my Incident report implied I would have limited protective support from management.
  3. (E)
    My lack of faith in assurance of confidentiality and protection (due to my Cultural experience and knowledge).
  4. (F)
    Unsafe living quarters increased fear for my safety from my attacker /her family/ and her associates after hours.
  5. (G)
    Fear of being isolated in a remote area without physical protection; transport; moral support; and limited phone coverage increased anxiety.
  6. (H)
    The overhanging ADCQ case increased stress and my emotional vulnerability.

This terror led to my having a major Panic attack and mental health breakdown in public. I was psychologically unfit to return to work until May 2019.[78]

  1. [60]
    As referred to earlier, in about August 2018, Ms Deshong consulted Mr Colahan through the Health Council's EAP.
  1. [61]
    Exhibit 9 is Mr Colahan's clinical records of his consultations with Ms Deshong. The first consultation was on 14 August 2018. In his progress notes of that consultation, Mr Colahan noted that:
  • Ms Deshong had been 'off work since May 15' and on sick leave without pay;
  • management made her do a fit for duty assessment because of her diabetes and also her fractured shoulder;
  • 'They say she is unfit for work'; and
  • in reference to Ms Hart: 'she's very highly strung'.[79]
  1. [62]
    In Mr Colahan's progress notes of the consultation on 31 August 2018, he noted that Ms Deshong was stressed about the work situation and also had financial stress in that she had to sell her car, she was not getting paid and was on leave without pay. Mr Colahan also noted Ms Deshong got a lawyer, 'plans to sue them for discrimination' and that she wanted to be reimbursed for lost wages and to keep her job.[80]
  1. [63]
    In Mr Colahan's report to Dr Kumar of the Cairns 24 Hour Medical Centre dated 17 October 2018, by which time he had seen Ms Deshong on four occasions, Mr Colahan opined:

As you are aware, Dorothy works as a counsellor with Apunipima doing a fly-in-fly-out role to Hopevale, and there has been a history of conflict with management over her fitness to be at work. Dorothy stated that she has not been at work since 15 May this year, and that her management are assisting that she is not fit to return to work because of a fractured shoulder.

The issue was eventually resolved and Dorothy return to work last week and was due to fly to Hopevale on Monday, but she became extremely distressed and upset as she was about to checkin for the flight and she subsequently decided not to go. She has advised me that she has been given a medical certificate for two weeks. Dorothy is also in the process of taking her employer to Fairwork Australia because of the treatment she has received at work.

Dorothy presents with high levels of stress and depressed mood associated with her work situation over the past few months. Her mood is generally low and she is very negative about the future and the world in general. She has periods of anxiety and uncontrolled crying, feelings of guilt for not being at work, and she reports considerable financial stress associated with being off work without pay. In my opinion Dorothy probably has a major depressive disorder, and I think she will require ongoing psychological support as she deals with the Fairwork case and her return to work.[81]

  1. [64]
    In his evidence-in-chief, Mr Colahan was asked by Ms Deshong, given what he knows of the incident in Hope Vale with her manager, whether it was probable that, at the first session, she was deliberately avoiding the topic by focusing on other concerns. Mr Colahan stated that was possible because his style would be to control the session to direct it to where he thought it was most useful and to the immediate issues rather than focusing on something that was not an immediate concern, such that he suspected a combination of her not wanting to talk about it and him not directing the attention there was what probably led to the major focus of their appointment.[82]
  1. [65]
    In cross-examination, Mr Colahan:
  • agreed that in respect of their first consultation, the main focus of the appointment was that Ms Deshong was really trying to get back to work and her employer considered her unable to go back to work;[83]
  • in respect of their second consultation, stated the main focus of the conversation was about Ms Deshong not being able to go back to work and anxiety about that; and her anxiety about how she would cope if she did go back to work;[84] and
  • having regard to his report to Dr Kumar dated 17 October 2018, if Ms Deshong had fears for her personal safety at Hope Vale and that was what prevented her from getting on the plane, he agreed that if that was a major focus of the conversation, it was likely he would have put that detail in the report.[85]
  1. [66]
    In cross-examination, it was put to Ms Deshong that she did not tell the WorkCover claims officer that she was traumatised because she was fearful of returning to Hope Vale. Ms Deshong's response was that she had no recollection of the conversation at all and at the time of that conversation, she would have been irrational, confused, very emotional and not '… in a fully sound mind.'[86]
  1. [67]
    Exhibit 8 contained an email from a WorkCover claims officer to Ms Deshong sent in November 2018 which recorded a conversation between them during which Ms Deshong informed the claims officer what caused her to go and see her doctor on 17 October 2018.[87] In a response email to the claims officer sent on 30 November 2018, Ms Deshong stated that what the claims officer wrote after their conversation was fine and that the claims officer '… pretty much captured the information I gave you.' Ms Deshong also attached to that email, a written up chain of events '… to try to create a clear picture of what has been happening.'[88]
  1. [68]
    In her written submissions, Ms Deshong did not deny the authenticity of that email exchange between her and the WorkCover claims officer.[89] Given Ms Deshong's email to the WorkCover claims officer stating that the claims officer 'pretty much captured the information' she (Ms Deshong) gave to her, I do not accept Ms Deshong's evidence that she did not understand what she was saying to the WorkCover claims officer at that time.
  1. [69]
    Ms Deshong was cross-examined about the fears to which she referred in her contentions. Ms Deshong stated that:
  • she was not specifically stating she needed protection from Ms Hart;
  • she needed protection from any form of retaliation; and
  • she could not be definitive about the identity of the retaliators.[90]
  1. [70]
    It was also put to Ms Deshong that there was a police station in Hope Vale if she needed the assistance of the Queensland Police Service. Ms Deshong agreed but stated she would need to get down there in the evening which would have meant her walking down there in the rain, after dark, in areas that were unlit. Ms Deshong also stated that on occasions the police station was left unmanned.[91] Ms Deshong also stated that in her culture, they were not quick to pick up the phone and call the police.[92]

Were the first, second, third and fourth stressors, or any of them, a major significant contributing factor to Ms Deshong's personal injury?

  1. [71]
    The Regulator submits that while there is no evidence that non-work events caused Ms Deshong's injury, her work cannot be the major significant contributing factor to her injury when the stressors said to be causative of the injury are not consistent with the evidence. In this regard, the Regulator submitted that the events of 20 March 2018 did not take place as described by Ms Deshong and the Commission ought to disregard her evidence in that respect.[93]
  1. [72]
    Ms Deshong submits that:
  • the verbal abuse from her manager was the initial cause of her psychological injury;[94] and
  • the verbal abuse from her manager played a major significant part of her illness.[95]
  1. [73]
    I am not persuaded that the interaction that took place between Ms Deshong and Ms Hart on 20 August 2018, and the events the subject of stressors two, three and four have a causal connection with her personal injury.

The first and second stressors

  1. [74]
    Ms Deshong's report of the incident, which is dated 23 March 2018, was a comprehensive report of the relevant events of 19, 20 and 21 March 2018. On that evidence, I find that that there was a highly charged conversation between Ms Hart and Ms Deshong on the evening of 20 March 2018. The person who instigated that conversation was Ms Hart in response to a complaint made by Ms Tully about Ms Deshong smoking in the vicinity of the unit.
  1. [75]
    Ms Deshong's evidence was that as a result of the incident with Ms Hart, she was traumatised.[96] However, Ms Deshong went to work the next day in the presence of Ms Hart and in fact attempted to greet Ms Hart but Ms Hart held her hand up with the stop sign and walked away.[97] Ms Deshong stated that she was hoping that Ms Hart may have calmed down from the night before and that perhaps Ms Hart would apologise to her.[98] It seems to me that Ms Deshong's conduct the next day towards Ms Hart is inconsistent with her being traumatised by what she described as an attack by Ms Hart. Further, while Ms Deshong went to a doctor later on 21 March 2018 and took the rest of that day off on sick leave,[99] she returned to work on 22 March 2018.[100]
  1. [76]
    In her contentions, one of the complaints made by Ms Deshong is that following her lodging the incident report, no one from the Health Council asked her if she intended to or wanted to press charges.[101] Given the content of Ms Deshong's incident report, this is hardly surprising. In the summary to that report, Ms Deshong stated that she wanted her report to be treated as if it was a workplace bullying and harassment report. Further, there is no evidence at all of Ms Deshong, at any time after 20 March 2018, making a complaint to the police about the incident that occurred on 20 March 2018 concerning Ms Hart. Ms Deshong's evidence in crossexamination was that she did not know, at the time of the incident of 20 March 2018, that what Ms Hart did was unlawful.[102] I do not accept her evidence in this regard. Ms Deshong, in my opinion, is a very intelligent and sophisticated person who would have been able to reasonably conclude, as at March 2018, whether or not particular conduct may have been unlawful or may have amounted to conduct of a criminal nature.
  1. [77]
    Ms Deshong first saw Mr Colahan on 14 August 2018. It does not appear from any of Mr Colahan's notes of his consultations with Ms Deshong on and from that day that Ms Deshong described the attack she says Ms Hart committed against her on 20 March 2018. While at the first consultation on 14 August 2018, Mr Colahan records Ms Deshong mentioning that Ms Hart was 'very highly strung',[103] there is no record at all of the incident on 20 March 2018.

The third stressor

  1. [78]
    There is no evidence that the third stressor had a causal connection with her personal injury.

The fourth stressor

  1. [79]
    Ms Deshong made no complaint to Mr Colahan that a cause of her anxiety was the failure of the Health Council to investigate the complaint she made of the incident report or the failure of any manager to take any action or to offer her time off work or offer her counselling support. This is not surprising for a number of reasons.
  1. [80]
    First, in relation to the investigation of her bullying and harassment complaint, upon returning to Hope Vale after the effects of the flooding, and becoming aware that Ms Hart was away from work and ill, Ms Deshong agreed to postpone the investigation of the incident report until Ms Hart was fit to return to work. Furthermore, while it appears there was a period of time, being the three weeks where Ms Deshong undertook training in the Cairns office, in which the investigation could have commenced, it was reasonable for the Health Council not to commence the investigation because, as Ms Wallace stated, Ms Deshong was present at work only for the purpose of training and because she was still on sick leave, the Health Council did not interview or deal with complainants in such circumstances.
  1. [81]
    Secondly, in relation to the Health Council's failure to offer her time off work or counselling, Ms Deshong did attend work on 21 March 2018, although she took most of that day off on sick leave. Ms Deshong then returned the office the next day and then later that day left for Cairns. After a week away from Hope Vale due to flooding, she flew in and flew out of Hope Vale for work until May 2018. In these circumstances, it is difficult to see why the Health Council would have made such any offer of time off or counselling and it is even more difficult to see how such a failure had a causal connection with her anxiety in October 2018. As submitted by the Regulator,[104] Ms Deshong knew of and sought out the contact details for the EAP,[105] which led to her seeing Mr Colahan in August 2018. On this evidence, it is reasonable to infer that Ms Deshong knew that support was available to her if she needed it. There is no evidence that Ms Deshong sought counselling or that she sought other time off work in relation to the incident of 20 March 2018. In all these circumstances, there is no evidence that the fact that the Health Council did not offer her time off work or counselling had a causal connection with her injury.
  1. [82]
    Thirdly, Ms Deshong, about a week after the event of 20 March 2018,[106] did return to work at Hope Vale and she performed her normal Fly in/Fly out work routine to Hope Vale up to on or about 15 May 2018 until she fractured her right shoulder. That is to say, the trauma Ms Deshong stated she suffered following the incident on 20 March 2018 was not such that it prevented her from returning to her ordinary work, up until on or about 15 May 2018.
  1. [83]
    For all these reasons, I cannot conclude that there was a causal connection between the first, second, third and fourth stressors and Ms Deshong's personal injury.

Were the fifth, sixth, seventh and eighth stressors, or any of them, a major significant contributing factor to Ms Deshong's personal injury?

The fifth stressor

  1. [84]
    The fifth stressor could not have arisen out of or in the course of Ms Deshong's employment.

The sixth and seventh stressors

  1. [85]
    My assessment is that Ms Deshong's sixth and seventh stressors were major significant contributing factors to Ms Deshong's personal injury. There are a number of reasons for this.
  1. [86]
    First, as best as I can make out from the evidence, the fact that the Health Council would not permit Ms Deshong to return to work on a full-time basis, following the fracture to her right shoulder until she had a full clearance to return to work, were the facts upon which her complaint to the ADCQ was made.
  1. [87]
    Secondly, Mr Colahan's evidence in cross-examination, which was consistent with his report to Dr Kumar dated 17 October 2018, was that the unresolved stress of which Ms Deshong complained was a combination of not being able to go back to work and her anxiety about how she would cope if she did go back to work.[107] Mr Colahan's evidence is consistent with the reasons given by Ms Deshong to the WorkCover claims officer about the reasons for her anxiety.[108] Those matters are connected with the ADCQ complaint concerning the Health Council's refusal to let her return to work due to her injured shoulder. In the consultation with Mr Colahan on 31 August 2018, he referred to Ms Deshong wanting to sue the Health Council for discrimination.

The eighth stressor

  1. [88]
    Thirdly, in relation to the eighth stressor, I do not accept Ms Deshong's contentions[109] and her evidence in cross-examination[110] about her expressed fears for her personal safety following her returning to work at Hope Vale in October 2018 after her recovery from her shoulder injury. Ms Deshong expressed no such fears about her safety to the WorkCover claims officer[111] or to Mr Colahan.[112] As recorded in Mr Colahan's report to Dr Kumar dated 17 October 2018, Ms Deshong expressed to him that the reason for her being distressed and upset was the history of conflict she had with the management of the Health Council over her fitness to be at work. As a consequence, I do not find that there is a causal connection between the eighth stressor and Ms Deshong's personal injury.
  1. [89]
    The question therefore becomes whether Ms Deshong's personal injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment.

Did Ms Deshong's personal injury arise out of or in the course of reasonable management action taken in a reasonable way in connection with her employment?

  1. [90]
    The Regulator submits that stressors four, six and seven fall under the category of management action.[113] I generally agree, although, for the reasons I have given above, there is no evidence that any inaction by the Health Council, following on from Ms Deshong lodging the incident report, had a causal connection with her personal injury.
  1. [91]
    The Industrial Court of Queensland has taken a wide view of what is 'management action'. However, 'management action' within the meaning of s 32(5)(a) of the Act means specific management action directed to the worker's employment itself as opposed to action forming part of the everyday duties or tasks that a worker performs in employment, such that the management action said to enliven s 32(5)(a) must be something different to the everyday duties and incidental tasks of the worker's employment.[114]
  1. [92]
    In my view, the action taken by the Health Council following on from Ms Deshong fracturing her right shoulder, namely, directing her not to attend work at Hope Vale and at Cairns, was management action. This is because it was specific management action directed to Ms Deshong's employment itself and was not management action forming part of the everyday duties and incidental tasks she performed.
  1. [93]
    The next question is whether that management action was reasonable management action taken in a reasonable way in connection with Ms Deshong's employment.
  1. [94]
    The Regulator submits that the Health Council's management action, in dealing with Ms Deshong's shoulder injury, being the management action upon which Ms Deshong's ADCQ complaint was made, was reasonable management action undertaken in a reasonable way in connection with Ms Deshong's employment. That submission is based upon Ms Wallace's evidence that the medical certificates about Ms Deshong's physical limitations was evidence that prevented Ms Deshong from completing her usual work as a Fly in/Fly out counsellor. The Regulator also submitted that the Commission should accept Ms Wallace's evidence that despite her consideration of alternative duties in Cairns, there were none.[115]
  1. [95]
    I accept the Regulator's submissions. Ms Wallace's evidence was that because of the travel that Ms Deshong was required to do in respect of her position, not only in respect of travelling to and from Hope Vale, but in respect to travel to other communities outside of Hope Vale, her physical limitations prevented her from safely undertaking that travel. Furthermore, there is no reason for me to disregard Ms Wallace's evidence that because of other employees who were engaged in return to work programs in the Cairns office, there was no case management work for Ms Deshong to perform in the Cairns office. Ms Wallace's evidence, in this regard, is plausible.
  1. [96]
    In addition, Ms Wallace's evidence, about this matter, was consistent throughout her evidence-in-chief and her evidence in crossexamination. While it is true that Ms Deshong did, over a period of three separate weeks, work in the Cairns office after injuring her right shoulder, that was for the very specific reason of the availability of relevant training for Ms Deshong.
  1. [97]
    The Regulator further submits that Ms Wallace's email dated 5 October 2018 in response to Ms Deshong's earlier email outlining her 'RETURN TO WORK CONDITIONS' was reasonable management action taken in a reasonable way. The Regulator pointed to Ms Wallace's evidence that she considered Ms Deshong's reference to her need for ongoing psychological support was related to her fears that the staff at Hope Vale would be aware of her complaint about Ms Hart and her discrimination claim. The Regulator submitted that Ms Wallace's evidence was that she reminded Ms Deshong that she had been cleared to return to work with respect to her shoulder and that that had been the only barrier to her returning to work. Furthermore, the Regulator submitted that Ms Deshong's document does not refer to any fear related to her personal safety but details her issues with Ms Hart's management of her work.[116]
  1. [98]
    Again, in my view, there is merit in the Regulator's submissions. Ms Deshong's document claimed that when she returned to work she would 'most likely' be working under 'semi hostile conditions' as a result of her ongoing discrimination complaint, her bullying and harassment complaint against Ms Hart which had not been finalised, and damage to her professional and personal reputation due to false gossip surrounding her absence.
  1. [99]
    Ms Wallace's response was that Ms Deshong's bullying complaint against Ms Hart would be dealt with in due course because Ms Deshong was fit to return to work. Ms Wallace further responded that whilst she could understand Ms Deshong's expressed hesitation in returning to work given the status of her legal proceedings, she assured Ms Deshong that her discrimination complaint would be kept confidential, that there had been no negative comments concerning her absence and that, to the contrary, it was well known that Ms Deshong had been absent as a result of a physical injury.
  1. [100]
    Ms Wallace stated that it was expected that all employees would, at all times, adhere to the Health Council's requirements and expectations for performance, behaviour and service delivery in accordance with its Employee Code of Conduct; and that if Ms Deshong, following her return to work, had any reason to consider she was experiencing 'semi hostile' conditions, she was to let Ms Wallace know immediately and that Ms Wallace would ensure it was investigated and addressed in accordance with the Health Council's policies and procedures.
  1. [101]
    For these reasons, my view is that Ms Wallace's response to Ms Deshong's email was reasonable management action undertaken in a reasonable way. As referred to earlier, it is the reality of the management action that must be examined, not an employee's perception of the management action. While Ms Deshong may have perceived that Ms Wallace's response failed to take into account Ms Deshong's unexpressed fears about her return to the workplace, the reality of the management action was that it was reasonable and undertaken in a reasonable way.
  1. [102]
    My assessment, having regard to the evidence I have referred to above, is that Ms Deshong had a flawed perception about the management action taken by Ms Wallace. Ms Deshong's flawed perception was that Ms Wallace's response did not deal directly with the issue she raised in her earlier email to Ms Wallace. The reality was that Ms Wallace's response, being the management action to be implemented upon Ms Deshong's return to work, was a direct response to the issues raised by Ms Deshong in her earlier email. It was reasonable management action taken in a reasonable way because it reasonably and directly dealt with the issues raised by Ms Deshong.
  1. [103]
    For all these reasons, my assessment is that Ms Deshong's personal injury is withdrawn from being a compensable injury because it arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment. The reasonable management action, so taken in a reasonable way, was:
  • the Health Council's management of Ms Deshong's attendance at work, having regard to her health and safety, following her fracturing her shoulder; and
  • the management response to the issues raised by Ms Deshong in her email to Ms Wallace following Ms Deshong being cleared to return to work.

Conclusion

  1. [104]
    In this appeal, the onus was on Ms Deshong to prove, on the balance of probabilities, that she suffered an injury within the meaning of s 32 of the Act.
  1. [105]
    For the reasons given above, while Ms Deshong's employment, in respect of the management by the Health Council of Ms Deshong following her fracturing her right shoulder, was the major significant contributing factor to her personal injury, Ms Deshong's personal injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment.
  1. [106]
    The review decision of the Regulator is confirmed.
  1. [107]
    Ms Deshong must pay the Regulator's costs of the hearing.

Orders

  1. [108]
    I make the following orders:
  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent is confirmed.
  1. Pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003, the Appellant is to pay the Respondent's costs of the hearing.

Footnotes

[1] Ms Deshong's statement of facts and contentions filed on 16 March 2020 ('Ms Deshong's contentions'), para. 1, under the heading of 'Contentions', the Workers' Compensation Regulator's statement of facts and contentions filed on 17 April 2020 ('the Regulator's contentions'), para. 1, under the heading of 'Contentions', and the Workers' Compensation Regulator written submissions filed on 20 January 2021 ('the Regulator's submissions'), para. 160.

[2] T 1-18, ll 31-32 and the Regulator's submissions, para. 3.

[3] Workers' Compensation and Rehabilitation Act 2003 s 32(1)(b).

[4] Workers' Compensation and Rehabilitation Act 2003 s 32(5)(a).

[5] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031;(2015) 252 IR 461 ('Church'), [24]-[27] (Martin J, President). I explained to Ms Deshong, following her opening submissions, the nature of a de novo hearing: T 1‑19, ll 6 to 43. In her final written submissions, Ms Deshong submitted that I 'advised' her that in order to avoid going over her whole case again, she would not need to cover what WorkCover said or what the review decision of the Regulator was and then submitted that she felt that the cross-examination of her, by counsel for the Regulator, about her statements to a WorkCover claims officer '… was contravening the earlier directions I was given': Ms Deshong's written submissions filed on 3 February 2021 ('Ms Deshong's submissions'), paras. 13 to 14. I reject these submissions. The assistance I gave to Ms Deshong was to point out, contrary to what she stated in her opening, namely, that the WorkCover decision maker had erred and that the review officer of the Regulator had engaged in jurisdictional error [T 1-17, ll 8-29], that I was not interested in what WorkCover and the Regulator said because I did not have to find error in those decisions for Ms Deshong to be successful in her appeal. I then further assisted Ms Deshong by pointing out, given a concession made by the Regulator, that the two issues for me to determine were whether her employment was the major significant contributing factor to her injury and, if so, whether her injury arose out of or in the course of reasonable management action taken in an unreasonable way in connection with her employment: T 1-19, ll 24-30. The cross-examination by counsel for the Regulator about the statements Ms Deshong made to a WorkCover claims officer about what she had previously said was a cause of her personal injury, and the tendering of those statements as reduced to writing, was not inconsistent with a de novo hearing of her appeal.

[6] Church (n 5) [37]-[39] (Martin J, President).

[7] State of Queensland (Queensland Health) v Q-Comp and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).

[8] Workers' Compensation and Rehabilitation Act 2003 s 32(1)(b).

[9] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083, [24] (Industrial Commissioner Neate).

[10] Ibid [10]. By contrast, the requirement for a personal injury, other than a psychiatric or psychological disorder, that the employment '… is a significant contributing factor to the injury' requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury: Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519, [27] (Keane JA, de Jersey CJ at [1] and Muir J at [49] agreeing).

[11] Blackwood v Mana [2014] ICQ 027, [23] (Martin J, President).

[12] The Regulator's contentions, para. 4 under the heading of 'Contentions'.

[13] State of Queensland v Q-COMP [2010] ICQ 6, [21] (President Hall).

[14] [2020] QIRC 097 ('DAF').

[15] Citations omitted.

[16] T 1-37, ll 43-46.

[17] Ms Deshong's contentions, para. 3 under the heading of 'FACTS'.

[18] Ms Deshong's contentions, para. 3 under the heading of 'FACTS'.

[19] Ms Deshong's contentions, para. 5 under the heading of 'FACTS'.

[20] T 1-22, ll 2-30 and T 1-23, ll 30-31.

[21] T 1-22, ll 31-33.

[22] T 1-22, ll 37-39.

[23] Exhibit 2.

[24] Exhibit 1, first and second pages.

[25] Exhibit 1, second and third pages.

[26] T 1-23, ll 1-5.

[27] T 1-39, ll 1-16.

[28] T 1-39, ll 38-44.

[29] T 1-40, ll 7-8.

[30] T 1-40, ll 39-42.

[31] T 1-64, ll 18-19.

[32] T 1-65, ll 46-47.

[33] T 1-22, ll 42-43.

[34] T 1-22, l 43-44.

[35] T 1-22, l 44 to T 1-22, l 1.

[36] T 1-23, ll 13-15.

[37] T 1-23, ll 15-20.

[38] Exhibit 1, third and fourth pages.

[39] Ms Deshong's contentions, para. 6 under the heading of 'FACTS'.

[40] Ms Deshong's contentions, para. 6 under the heading of 'FACTS'.

[41] Ms Deshong's contentions, paras. 9, and 11-12 under the heading of 'FACTS'.

[42] T 1-25, ll 20-21.

[43] T 1-24, l 44 to T 1-25, l 6.

[44] T 1-25, l 10 to T 1-26, l 32.

[45] T 1-26, l 34 to T 1-27, l 15.

[46] T 2-17, l 25 to T 2-18, l 3.

[47] T 2-23, ll 6-8.

[48] T 2-24, ll 3-14.

[49] T 2-24, ll 28-33.

[50] T 2-24, ll 37-45.

[51] T 2-25, ll 1-11.

[52] T 2-25, ll 11-34.

[53] T 2-33, ll 26-36.

[54] T 2-33, l 45 to T 2-34, l 3.

[55] Ms Deshong's contentions, paras. 9-10 under the heading of 'FACTS'.

[56] Ms Deshong's contentions, para. 11 under the heading of 'FACTS'.

[57] Exhibit 6.

[58] Exhibit 6.

[59] Exhibit 6.

[60] Exhibit 6.

[61] T 1-42, ll 40-42.

[62] T 1-43, ll 18-21.

[63] T 1-43, ll 29-32.

[64] T 1-43, l 34 to T 1-44, l 7.

[65] T 1-44, ll 11-17.

[66] T 2-18, l 43 to T 2-19, l 2.

[67] T 2-19, ll 4-18.

[68] T 2-19, ll 20-39.

[69] T 2-19, l 41 to T 2-20, l 5.

[70] T 2-20, ll 6 to 12.

[71] Ms Deshong's contentions, paras. 13-16 under the heading of 'FACTS'.

[72] Exhibit 3.

[73] Exhibit 3.

[74] T 2-20, l 19 to T 2-21, l 11.

[75] T 1-32, l 45 to T 1-33, l 1.

[76] T 1-33, ll 11-18.

[77] T 1-33, ll 34-41.

[78] Ms Deshong's contentions, para. 17 under the heading of 'FACTS'.

[79] Exhibit 9.

[80] Exhibit 9.

[81] Exhibit 9.

[82] T 2-3, ll 29-37.

[83] T 2-6, l 45 to T 2-7, l 8.

[84] T 2-7, ll 17-27.

[85] T 2-9, ll 6-14.

[86] T 1-54, ll 34-45.

[87] Exhibit 8, first page.

[88] Exhibit 8, fourth page.

[89] Ms Deshong's submissions, page 4 of 13, para. 14.

[90] T 1-50, l 41 to 1-51, l 5

[91] T 1-52, ll 8-14.

[92] T 1-55, ll 9-13.

[93] The Regulator's submissions, para. 168.

[94] Ms Deshong' submissions, page 5 of 13, para. 15

[95] Ms Deshong' submissions, page 4 of 13, para. 18.

[96] T 1-50, ll 17-19.

[97] T 1-22, ll 43-44.

[98] T 1-22, ll 42-43.

[99] T 1-22, l 45 to T 1-23, l 1.

[100] T 1-23, ll 13-16.

[101] Ms Deshong's contentions, para. 6 under the heading of 'FACTS'.

[102] T 1-55, ll 4-7.

[103] Exhibit 6.

[104] The Regulator's submissions, paras. 133-134.

[105] T 1-27, l 14.

[106] T 1-27, ll 17-44. The delay for that one week period was due to flooding.

[107] That evidence is summarised in paragraph [65] of these reasons.

[108] Exhibit 8, pages 1 and 4.

[109] Ms Deshong's contentions, para. 17(B)-(G).

[110] T 1-50, l 23 to T 1-51, l 43.

[111] Exhibit 8, page 1.

[112] Exhibit 9.

[113] The Regulator's submissions, para. 174.

[114] DAF (n 14), [41].

[115] The Regulator's submissions, paras. 179-181.

[116] The Regulator's submissions, paras. 182-184.

Close

Editorial Notes

  • Published Case Name:

    Deshong v Workers' Compensation Regulator

  • Shortened Case Name:

    Deshong v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 205

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    08 Jun 2021

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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