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Skinner v Workers' Compensation Regulator[2022] QIRC 19

Skinner v Workers' Compensation Regulator[2022] QIRC 19

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Skinner v Workers' Compensation Regulator [2022] QIRC 019

PARTIES:

Skinner, Aleesha Elizabeth

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2020/72

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

28 January 2022

HEARING DATES:

20 May 2021 and 21 May 2021

DATES OF WRITTEN CLOSING SUBMISSIONS:

Appellant's submissions, 17 June 2021

Respondent's submissions, 5 July 2021

Appellant's reply submissions, 12 July 2021

MEMBER:

McLennan IC

HEARD AT:

Gladstone

ORDERS:

1. The appeal is allowed.

2. The decision of the Respondent dated 14 May 2020 is set aside.

3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.

4. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – consideration of whether psychiatric condition was "recurrent" – whether psychiatric injury arose out of or in the course of employment – whether employment was the major significant contributing factor to psychiatric injury – whether psychiatric injury arose out of, or in the course of reasonable management action taken in a reasonable way

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 132A, s 545, s 558

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132

CASES:

Allwood v Workers' Compensation Regulator [2017] QIRC 88

Blackwood v Mahaffey [2016] ICQ 10

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Coles Supermarkets Australia Pty Ltd v Blackwood [2015] QIRC 011

Davidson v Blackwood [2014] ICQ 008

Davis v Blackwood [2014] ICQ 009

Delaney v Q–COMP Review Unit (2005) 178 QGIG 197

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027

Kavanagh v Commonwealth (1960) 103 CLR 547

Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Linke v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 181

Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16

Morrison v Workers' Compensation Regulator [2016] QIRC 065

Nunan v Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119

Prizeman v Q–COMP (2005) 180 QGIG 481

Q-COMP v Foote (No 2) [2008] ICQ 42

Q-COMP v Hohn (2008) 187 QGIG 139

Read v Workers' Compensation Regulator [2017] QIRC 072

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Sabo v Q–COMP [2010] ICQ 47

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Sotiroulis v Kosac (1978) 80 LSJS 112

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

State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447

Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028

WorkCover Queensland v Kehl (2002) 170 QGIG 93

Workers' Compensation Regulator v Langerak [2020] ICQ 2

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13

APPEARANCES:

Mr S G Moon of counsel instructed by Chris Trevor & Associates Lawyers for the Appellant.

Mr B I McMillan of counsel, directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Andrew and Aleesha Skinner are raising their two school-age children in the seaside city of Gladstone, Central Queensland.
  1. [2]
    Coming from a loving local family, Andrew is a fitter by trade.  He has worked on nearby Curtis Island in that capacity.[1] 
  1. [3]
    Andrew's dad Kevin works for himself in a courier business[2] and his mum Neree has recently retired from her administration role.[3] 
  1. [4]
    Aleesha describes her marriage with Andrew as "Good.  Really good".  She considers her husband to be her "best friend" and appreciates his "massive support".[4] 
  1. [5]
    Aleesha also enjoys a close relationship with Neree.  She confides in her mother-in-law and welcomes her visits "probably several times a week".[5]
  1. [6]
    Andrew's parents have known Aleesha for about 15 years.  A few months after Aleesha returned to her birthplace of Gladstone in 2005,[6] she formed a relationship with Andrew and began living with the Skinners in the family home.[7]
  1. [7]
    Aleesha set about finding work locally.  She took casual employment in a shop, then commenced a clerical traineeship, later working in various administration roles before moving to Emerald for a while.[8]  The couple's two children were born in 2011 and 2012. 
  1. [8]
    A few years later, Aleesha commenced at Gladstone Regional Council in March 2015.[9] 
  1. [9]
    First located in the environmental section of the Regulatory Services department, Aleesha described the scope of that work as "preparing a lot of your food licenses, any sort of environmental complaints and that sort of thing, and assisting the environmental health officers."[10]  She then moved to the local laws section of the Regulatory Services department of Council.  There, Aleesha recounted that she "was predominantly responsible for the pound.  So any impound with any animals, noise complaints or that type of thing based around animals, basically."[11]  That new role included "…answering a lot of phone calls based on people making complaints or concerns."[12]
  1. [10]
    Prior to starting work at Council, Aleesha's "previous normal" was described by Andrew as "always happy to go to work", "excited about her job", "happy and bubbly."[13]  Neree painted a similar picture of Aleesha as a "happy-go-lucky, very caring, loving type of person".[14]
  1. [11]
    Over time, Andrew and Neree noticed a change in Aleesha.
  1. [12]
    Andrew reflected that "the longer she was there, the more she started to talk" to him about the abusive nature of residents' phone calls that she was required to deal with in the course of her work.  He talked about it as a "gradual build up over time", saying that while Aleesha "just used to brush it off" in the beginning, towards the end of her time at Council "it was just getting too much".[15]  Andrew's observation was that "you could tell it was starting to wear her down a little bit, and actually what – slightly affecting her."[16] 
  1. [13]
    Neree gave a similar account of the change in Aleesha, saying she could tell by the tone of Aleesha's voice, that she was "a bit more stressed" than normal:[17]

You knew – you know something's not quite right, and you think, okay, something's happening here, but she's not elaborating, so just let it slide.  And – and maybe you ask her in a day or so and, you know, you sort of just – that sort of thing just gradually kept – crept in over a – a period of time.[18]

  1. [14]
    Neree said Aleesha started to open up about the torrent of abuse directed to her at work, recalling Aleesha's comment that "it feels like it's just happening all the time to her".[19]
  1. [15]
    It is not disputed that Aleesha was required to have "difficult interactions with customers" and that "these interactions exposed (Aleesha) to abuse."[20]  Notwithstanding the frequency of such abusive phone calls is a point of difference between the parties. 
  1. [16]
    It is also not disputed that a series of incidents happened to Aleesha between March 2015 and February 2017, whilst working at Council.[21]  The chronicle below is drawn from elements submitted by the Appellant, that is not opposed:[22]

Sometime after May 2015

Aleesha moved to a role in which she predominantly dealt with matters pertaining to impounded animals, noise complaints and other animal related complaints. 

She was called "stupid", "bitch", "mole" [sic] or "Almost pretty much every name you can think of I've probably been called it" on a weekly basis.[23]

Sometime in 2015

The Supermarket Incident

Aleesha's unchallenged evidence is:

I was at the supermarket with my daughter, and we were putting things on the conveyor thing at the check-out, and I had the person in front of me and also the person at the check-out have a go at me about rates and the cost and nothing being done.[24]

Aleesha was in her work uniform at the time.  The effect of the interaction on her was as follows:

It rattled me a fair bit, especially 'cause I did have my daughter with me as well and I did steer clear of that supermarket.[25]

After the Supermarket Incident

The Roaming Dogs Incident

Aleesha received a call about roaming dogs during which the complainant threatened to find and shoot her. 

She recalled the Mayor came to see her and advised Aleesha to:

…basically go home and have a glass of wine.[26]

2 March 2016

Performance review states that Aleesha's supervisor found it difficult to gauge how much work Aleesha had and that Aleesha had undertaken most of the annual registration and renewals on her own.[27]

Ms Ali Moore was unable to comment on the meaning of this entry as she was not involved in that particular performance review.[28]

Aleesha recounted that calls regarding unpaid animal registrations had an increased likelihood of becoming abusive compared to other calls she was required to make.[29]

June 2016 – July 2017

Ms Ali Moore was Aleesha's supervisor.  During this period a large part of Aleesha's work involved follow up on unpaid animal registrations and reuniting roaming animals with their owners.[30]

19 June 2016

The Ms B.S Incident

Ms B.S sent an email to Council to complain about the manner in which Aleesha conducted a telephone call complaint.[31]

Aleesha describes Ms B.S as:

not so nice…She was a known one to council but, yes, she was never very nice.[32]

December 2016

Aleesha commenced working the dashboard system which involved following up on outstanding animal registrations.[33]

17 February 2017

The Mr P.C Incident

Aleesha entered a customer service request in relation to Mr P.C.[34]

Aleesha recalls the particular caller ought to have understood council processes.  Aleesha described his demeanour towards her in a telephone call as "aggressive" and that "no answer I could give or anything I could say was helping."[35]

  1. [17]
    By mid-August 2017, Aleesha ceased attending work.[36]  That closely followed Aleesha's urgent referral to psychiatrist Dr Lynne Steele with suicidal ideation on 10 August 2017,[37] with a consultation the next day.[38]
  1. [18]
    The month prior to her ceasing work, Aleesha had presented to her General Practitioner with worsening depressive symptoms on 6 July 2017.[39]
  1. [19]
    On 2 April 2017, Aleesha presented to her local GP clinic reporting that she has had issues with anxiety for a month, that she had difficulty sleeping and that she had been having panic attacks with increasing frequency.[40]  That would place onset of Aleesha's anxiety symptoms on or about 2 March 2017, about a fortnight after the Mr P.C Incident.
  1. [20]
    About eight months earlier again, Aleesha's General Practitioner had recorded that she is "stressed about life situation – husband may become redundant soon."[41]  That was about five weeks after the Ms B.S Incident.
  1. [21]
    It is accepted that Aleesha has been diagnosed with a major depressive disorder.[42]  Whether or not that is a further episode of the same "recurrent"[43] condition is a matter of dispute between the parties. 
  1. [22]
    It is not disputed that the cause of Aleesha's psychiatric injury is multifactorial.[44] 
  1. [23]
    My task in this Decision is to weigh those various factors, in order to determine whether Aleesha's employment at Council was the "major significant contributing" factor causative of her psychiatric injury.

Claim details

  1. [24]
    Aleesha lodged an application for assessment of permanent impairment (the application) with Queensland Local Government Workcare (LGW) on 13 June 2019.[45] 
  1. [25]
    Her claim was in respect of having sustained psychological injury by way of "severe anxiety and psychotic depression"[46] over a period of time from March 2015 to August 2017.[47] 
  1. [26]
    LGW rejected Aleesha's application, instead finding that there was insufficient evidence to establish a causal connection between "abuse from a rate payer when out shopping, receipt of threatening phone calls in the course of her occupation including an alleged threat to shoot her and a large number of follow-up telephone calls with respect to the non-payment of dog registrations"[48] and the psychiatric illness sustained. 
  1. [27]
    By reference to Dr Gunn's medical report and the evidence of Ms Ali Moore, LGW concluded that employment was not the major significant contributing factor to Aleesha's psychiatric illness.[49] 
  1. [28]
    LGW had "further considered in relation to those events related by (Aleesha) as contributory to her psychiatric distress that they involved management action which was both reasonable and taken in a reasonable way."[50]
  1. [29]
    This had the effect of excluding Aleesha's application pursuant to s 32 and s 132A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').[51]
  1. [30]
    Aleesha applied to the Workers' Compensation Regulator ('the Regulator') to review that decision on 13 February 2020. 
  1. [31]
    The Regulator confirmed LGW's decision on 14 May 2020.
  1. [32]
    Aleesha subsequently filed this appeal against the Regulator's decision on 12 June 2020.

What legal tests must be satisfied for Aleesha's appeal to succeed?

  1. [33]
    The definition of injury, per the iteration of the Act at the relevant time, was (emphasis added):

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. (3)
    Injury includes the following –

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

…

  1. (4)
    For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (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.
  1. [34]
    An injury arises out of employment where there is a causal connection between the employment and the injury.[52]  That foundational point is disputed here.
  1. [35]
    Additionally, the employment must be the major significant contributing factor in the case of a psychiatric disorder.  That is also disputed.
  1. [36]
    An appeal such as this is a hearing de novo.[53]  The Appellant bears the onus to prove, on the balance of probabilities, that she sustained an injury within the meaning of the Act.  As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator:

The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[54]

What are the questions to be determined?

  1. [37]
    There is no dispute between the parties that:
  • Aleesha was a worker within the meaning of s 11 of the Act, during the relevant period;[55] and
  • Aleesha has a psychiatric condition (namely, "major depressive disorder").[56] 
  1. [38]
    The questions to be determined are:
  • whether Aleesha's psychiatric illness is a "recurrent" major depressive disorder, (as diagnosed by Dr Gunn);[57]
  • whether Aleesha's psychiatric disorder arose out of, or in the course of, her employment;
  • whether Aleesha's employment was the major significant contributing factor to her psychiatric injury; and
  • whether Aleesha's psychiatric disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment.

Summary of Findings

  1. [39]
    For the reasons that follow, I find that:
  • Aleesha's psychiatric condition was not a "recurrent" major depressive disorder, (as diagnosed by Dr Gunn).[58] 

It was simply rather a "major depressive disorder", that is effectively the same condition as a "severe major depression with psychotic features" as diagnosed by Dr Steele.

  • Aleesha's psychiatric injury did arise out of, or in the course of, her employment;
  • Aleesha's employment was the major significant contributing factor to her psychiatric injury; and
  • Aleesha's psychiatric disorder did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment.

Evidence and submissions

  1. [40]
    Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only).
  1. [41]
    The Appellant's written closing submissions were filed on 17 June 2021.
  1. [42]
    The Respondent's written closing submissions were filed on 5 July 2021.
  1. [43]
    The Appellant's written closing submissions in reply were filed on 12 July 2021.
  1. [44]
    The evidence of the witnesses and three Exhibits tendered at the Hearing, together with the written closing submissions, the Statements of Facts and Contentions, the Workers' Compensation Regulator notice of appeal and other materials filed in this matter were considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Witnesses

  1. [45]
    The witnesses for the Appellant's case were:
  • Mrs Aleesha Skinner, the Appellant herself;
  • Mr Andrew Skinner, the Appellant's husband;
  • Mrs Neree Skinner, the Appellant's mother-in-law;
  • Dr Lynne Steele, the Appellant's treating psychiatrist; and
  • Dr Trevor Lotz, a consultant psychiatrist.
  1. [46]
    Dr Danielle Gitsham, formerly the Appellant's General Practitioner, was also to be called as a witness.  However, she was not available at the appointed time of her evidence and I was later advised that the Appellant no longer sought to call Dr Gitsham as a witness.  That was not objected to by the Respondent.
  1. [47]
    The witnesses for the Respondent's case were:
  • Ms Ali Moore, formerly the Appellant's supervisor at Gladstone Regional Council for a period between June 2016 and July 2017; and
  • Dr Jennifer Gunn, a consultant psychiatrist.

Is the psychiatric illness a "recurrent" Major Depressive Disorder?

  1. [48]
    It is not disputed that Aleesha has a psychiatric illness (namely, a "major depressive disorder").[59] 
  1. [49]
    The question here is whether that "major depressive disorder" presentation was a further episode in that existing psychiatric condition (that is, a "recurrent" major depressive disorder). 
  1. [50]
    The Appellant's position was that "There is no evidential basis upon which the Commission can form an opinion that the Appellant has previously suffered a severe psychiatric illness".[60] 

 Dr Gunn

  1. [51]
    Dr Gunn's diagnosis was that this was a "Recurrent Major Depressive Disorder – in partial remission".[61]  Dr Gunn said:

I cannot confirm a psychiatric injury.  I can confirm the development of a psychiatric disorder over time, namely Recurrent Major Depressive Disorder.  Please note that Recurrent Major Depressive Disorder has a tendency to recur.[62]

  1. [52]
    At the Hearing, it was clarified that even with "at least an 11 year gap",[63] "putting aside that post-natal depression issue",[64] Dr Gunn's opinion was that the diagnosis of Aleesha's condition was a "recurrent major depressive disorder".  Dr Gunn opined:

It's a – to me, is still recurrent.  Just because there's a ten year, of which we don't have any records.  Unfortunately, we don't have records saying there wasn't or there was, if you know what I mean.  So that, she has her another episode of major depressive disorder, that's a recurrence.  So depressive disorder comes as a single episode or recurrent.[65]

  1. [53]
    Dr Gunn's report included that Aleesha "first suffered any emotional symptoms when she was either fifteen or sixteen year old.  She reported that this was in perhaps 2003."  At that time, three people close to Aleesha died suddenly and unexpectedly in separate tragic events.  In the same period, Aleesha also endured stress in her (then) romantic relationship.  Aleesha reported that "she developed symptoms of sadness and perhaps depression" and that as a result, she was prescribed medication taken from 2003 to 2005 when she relocated to Queensland.[66]
  1. [54]
    Dr Gunn's report stated that Aleesha claimed no other emotional or psychological symptoms until 2017.[67]
  1. [55]
    With respect to whether or not Aleesha had suffered from Post-Natal Depression, Dr Gunn's report noted that "she was not sure but after the birth of her second child, she may have attended a general practitioner at a Super Clinic in Gladstone for her mood.  She reported her symptoms were that she was very tired and she was struggling.  She can't remember if she was placed on any medications at that time.  She was not sure how long she was unwell."[68]

 GP notes

  1. [56]
    The Patient Health Summary provided by Gladstone GP Superclinic records Aleesha's Active Past History of "Depression" in 2006.[69]  There is no reference to any prior diagnosis of Post-Natal Depression here.
  1. [57]
    The next record pertaining to Aleesha's psychological state of "stress" is not until 28 July 2016.[70]

 Dr Steele

  1. [58]
    Dr Steele's correspondence to Dr Gitsham dated 11 August 2017 noted that Aleesha "has a longstanding history of anxiety, depression and eating disorder", adding that "There does not appear to be any obvious trigger for her current presentation…"[71]
  1. [59]
    However Dr Steele further opined that Aleesha's presentation on 10 August 2017 was quite different to the depression in her teenage years and was thus a different illness.  Dr Steele's evidence was (emphasis added):

…in a lot of cases, adolescent depression is related to situation.  So there's usually a situational factor or stressor that has triggered that depressed state.[72]

…

But it would certainly be worth saying that her presentation in August of 2017 was not that of an adolescent depression, it was of psychotic depression which is a completely different type of depressive illness.[73]

…

So psychotic depression is a very severe depression which affects cognition and at times it can accept thought form which is your pattern of speech and your pattern of thought.  It will have delusions attached or visual or auditory hallucinations.  So there's an impact on cognition and capacity with psychotic depression.  It's the most severe form of depression.[74]

  1. [60]
    Dr Steele's evidence was that Aleesha had not reported to her ever having been diagnosed with Post-Natal Depression,[75] though considered that the period of low mood Aleesha may have experienced after the birth of her youngest child was quite a different presentation to the illness she was dealing with in 2017.  Dr Steele said (emphasis added):

Well, I think what's important to see is, you've actually got a very different episode in 2017 and I can see that Dr Duke has said what sounds like a period of postnatal depression.  So I – I'm not sure as whether that was actually diagnosed and treated via psychiatrist or if there was an admission around about that time.  I don't have any of that information.  It certainly wasn't given to me by Aleesha in history so I wasn't aware of that.  So I am assuming that she may have had an episode where mood was low and her GP has perhaps put her on an antidepressant medication.  But again, that would be about looking at the GP records of that time to get clarity because sometimes, mums of new babies are put on antidepressants for a variety of reasons.  Whether or not this was – I think it's quite clear this wasn't a psychotic depression.  It certainly wasn't the level of illness that she presented with in 2017, or she would have been admitted.  So quite a different presentation, but again, it's consistent with – you've got – you've got someone who has a past history of mental health issues and some recurrent episodes of depression, until the very serious episode in 2017.  But I can't really give you much clarity around about that.  It sounds like it was a period of postnatal depression.  I think that – that would need to be examined in the GP records.[76]

Whilst Dr Steele used the phrase "some recurrent episodes of depression", she observed it was clear that Aleesha did not have a "psychotic depression" after the birth of her youngest child and the 2017 illness was "quite a different presentation" and "sounds like it was a period of postnatal depression."

 Dr Duke

  1. [61]
    Dr Duke's report referred to Aleesha's past psychological history in these terms:

Ms Skinner reports during her teenage years having seen a counsellor for a period of time for grief and loss issues after a number of deaths in the family.  She also had a period of treatment for anorexia.  She then reports no difficulties of a mental health nature until after the birth or her younger daughter at which stage she had a period of treatment of antidepressant medication which sounds like a period of postnatal depression.  She then reports no problems until the difficulties arising from late 2016.[77]

  1. [62]
    Dr Duke concluded that:

In late 2016 she began developing symptoms of a depressive illness, and this occurs on a genetic vulnerability for depression as well as past problems with depression including in the postnatal period.[78]

 Dr Lotz

  1. [63]
    Dr Lotz's report stated that Aleesha has a past psychiatric history of:

…an eating disorder (restrictive) and anxiety and depression.  From her history and that of Dr Steele, it appears that her depression was reactive to two motor vehicle fatalities of persons known to her and one suicide.[79]

He concluded that:

…it appears Ms Skinner did have a pre-existing history of eating disorder and anxiety and depression and developed features of anxiety and depression as a result of exposure to difficult clients, both telephonically and in person, being confronted in public places.[80]

  1. [64]
    At the Hearing, Dr Lotz agreed with the proposition that a past history of depressive episodes is a significant thing to look for in terms of the indicators of major depression.[81]  He further added that (emphasis added):

Well, there's obviously a family predisposition – or potentially a family predisposition to major depression.  Ms Skinner would be a risk of having major depression and, from the history, appears to have struggled with symptoms of depression prior.  And then once in the workplace where she was confronted with difficult circumstances she had a relapse.[82]

  1. [65]
    Dr Lotz did not note any history of Aleesha either experiencing depression after the birth of her child, or of taking medication at that time.  He said: "…it's not in my notes so I can't recall whether she actually said it to me.  I – I assume that if she did I would've put it in as past psychiatric history."[83]  He went on to explain that even if Aleesha had experienced a period of depressive symptoms after the birth of her youngest child, it would be unlikely to affect the opinions expressed in his report as "Postnatal depression is usually short lived."[84] 

 Mrs Neree Skinner

  1. [66]
    Neree said that Aleesha had told her of the circumstances surrounding her history of past mental health problems as a teenager, including that she had earlier been diagnosed with depression and anorexia. 
  1. [67]
    Neree's evidence was that Aleesha said that she had taken anti-depressant medication prior to 2017 but that "…she'd been off them for quite a while, from my memory, yep."[85]
  1. [68]
    Neree did not think that Aleesha had taken antidepressants after either of her babies were born.[86]

 Mr Andrew Skinner

  1. [69]
    In response to whether or not he observed Aleesha to have any coping issues after the birth of their second child, Andrew's view was that it was the usual "motherhood challenges" inherent in having two babies so close together.  He said:

Maybe a little bit, more because there was – the kids were – there wasn't a big difference, like, there – there's 12 months 12 days apart.  But it was – she wasn't not coping, like, she was able to cope fine mentally and everything, it was more just the – the motherhood challenges, I guess – the day-to-day challenges – just because they got two young kids.  And it was just a bit of a shock because it was never planned, so.[87]

 Ms Aleesha Skinner

  1. [70]
    Aleesha stated that she was first diagnosed with depression as a teenager in about 2004 – 2005.[88]
  1. [71]
    Aleesha did not recall being diagnosed with Post-Natal Depression[89] nor taking anti-depressant medications after her daughter was born.[90]  Aleesha stated:

I remember going to see someone like to confirm, you know, what was normal and what wasn't, but I don't remember actually having medication.[91]

  1. [72]
    Whilst Dr Duke's report contained his view that it sounded like Aleesha experienced a period of Post-Natal Depression at that time, Aleesha stated that "I don't believe I told him that."[92] 

 Consideration

  1. [73]
    Dr Duke examined Aleesha on 30 May 2018.[93]  His report first stated that Aleesha:

…reports no difficulties of a mental health nature until after the birth or her younger daughter at which stage she had a period of treatment of antidepressant medication which sounds like a period of postnatal depression. 

  1. [74]
    I note that there are no corresponding medical records available that support that Aleesha was either prescribed antidepressant medication or had such diagnosis at that time.
  1. [75]
    Whilst it is accepted that Aleesha's memory is now somewhat impaired as a result of a treatment regime, her evidence nonetheless was that she didn't believe she said that to Dr Duke. 
  1. [76]
    Neither party called Dr Duke to give evidence at this Hearing; thus any notes he may have taken during his skype assessment of Aleesha were not available to further that inquiry.
  1. [77]
    None of the other medical practitioners called to give evidence confirmed Aleesha herself had told them that she was prescribed antidepressant medication and / or was diagnosed with postnatal depression following the birth of her daughter; though reference was made to it on the basis of the contents of Dr Duke's report (the presumption no doubt being that Aleesha would first have had to tell Dr Duke that history, in order for it to appear there).
  1. [78]
    Dr Gunn's account was essentially that Aleesha saw a general practitioner at a Super Clinic in Gladstone because she was tired and struggling.  Dr Gunn reported Aleesha could not recall whether or not she was prescribed medication to help with that.
  1. [79]
    I have previously observed there are no available records of the GP Super Clinic that confirm a prescription of antidepressants or a diagnosis of post-natal depression at that time.
  1. [80]
    Dr Steele said Aleesha had not told her of ever having been diagnosed with Post-Natal Depression.  She said "It certainly wasn't given to me in history by Aleesha so I wasn't aware of that."[94]  With respect to any treatment with anti-depressants after Aleesha's children were born, Dr Steele offered "She reported to me past treatment with antidepressants.  I wasn't aware of the timeframe, and I certainly haven't documented diagnosis of postnatal depression.  But she certainly has given me a list of antidepressants that she had previously trialled.  I haven't documented whether or not any of these were after the birth of her children, so I haven't got a timeframe around that."[95]
  1. [81]
    Dr Lotz also did not note any history of post-natal depression or prescription of antidepressant medication to Aleesha after the birth of her child at that time. 
  1. [82]
    Neree Skinner's evidence that she did not think that Aleesha had taken antidepressants after either of her babies were born is also persuasive.  Neree and Aleesha enjoy a close relationship.  Aleesha had openly shared her history of past mental health problems and medication with her mother-in-law, in whom she confided and saw regularly each week.  If it were the case that Aleesha had been diagnosed with post-natal depression or was prescribed such medication, she would be likely to talk it over with Neree in my view.
  1. [83]
    Similarly, the evidence of Aleesha's husband and "best friend" Andrew was that she was "able to cope fine mentally and everything, it was more just the – the motherhood challenges". 
  1. [84]
    His recollection aligns with Aleesha's account of consulting "someone" to confirm what was normal and what wasn't but that she didn't remember actually having being prescribed medication at that time. 
  1. [85]
    Aleesha said that she had "pondered" "getting used to the new normal" with having two kids.[96]  She explained "I'd never been a mum before and …was trying to get used to being a mum.  But then then all of a sudden throwing a newborn in with it, I didn't know what to expect."  However, Aleesha stated what was actually going on with her "was very much a sleep deprivation type of scenario"[97], relatable to "anyone, basically, I had two kids under the age of two."[98]
  1. [86]
    In light of all that, I am not persuaded that Aleesha was either diagnosed with post-natal depression or prescribed anti-depressant medication at that time.  My view is that it was certainly likely that Aleesha was exhausted by the challenges and rewards of caring for her two very young infants around the clock, with 'sleep' being the Holy Grail for new parents.
  1. [87]
    If I am wrong on that point, I note Dr Lotz's explanation that even if Aleesha had experienced a period of depressive symptoms after the birth of her youngest child, it would be unlikely to affect the opinions expressed in his report as that type of depression is usually short lived.  
  1. [88]
    In further considering whether the condition suffered by Aleesha was a "recurrent" Major Depressive Disorder, Dr Gunn's evidence was that depressive episodes were still "recurrent" even if the presentations were over a decade apart. 
  1. [89]
    However, I am not persuaded that Aleesha did in fact have a diagnosis of "Major Depressive Disorder" ("the most severe form of depression"[99]) back in her teenage years, or whether that former psychiatric condition and treatment was for a different type of depression (and so cannot be considered to be "recurrent" as such). 
  1. [90]
    Although Dr Steele has noted that Aleesha had "a previous history or recurrent depressive disorder and anxiety",[100] I am mindful that her opinion was that Aleesha's presentation in 2017 was quite different to the depression in her teenage years and was thus a different illness.  Dr Steele clearly delineated between the nature of "adolescent depression" and "psychotic depression", as set out at paragraph [59] earlier.  Dr Steele's explanation that the two are a "completely different type of depressive illness"[101] rings true.  I further note Dr Steele's psychiatry experience spans more than two decades[102] and her depth of knowledge of Aleesha's particular circumstances in her capacity as her treating psychiatrist over a significant period of time.  It follows then that the "extent to which (Dr Steele) had a correct grasp of basic, objective facts relevant to the problem"[103] is a relevant consideration in my assessment of whether Aleesha's psychiatric illness could be said to be recurrent or not.  
  1. [91]
    Further, Dr Steele's status as Aleesha's treating psychiatrist does not count against the weight of her evidence and I note Mr Moon's[104] submissions with respect to the Uniform Civil Procedure Rules on this point also.[105]
  1. [92]
    If I am wrong on that point, I note also that the diagnosis provided by Dr Steele, Dr Duke and Dr Lotz all do not include "recurrent", with Dr Gunn's diagnosis deviating in that sense.  In this case, I am minded to accept the majority view.[106] 
  1. [93]
    While it is accepted Aleesha experienced "depression" as a teenager and the GP records note Aleesha's Active Past History of "Depression" in 2006, that is not the same diagnosis as "Major Depressive Disorder" (the most severe form of depression) and thus not the same illness in my view.[107] 
  1. [94]
    For the above reasons, I find that:
  • Aleesha's psychiatric condition was not a "recurrent" Major Depressive Disorder. 

It was simply rather a "Major Depressive Disorder", that is effectively the same condition as a "severe major depression with psychotic features" as diagnosed by Dr Steele.

Did Aleesha's psychiatric disorder arise out of, or in the course of, her employment?

  1. [95]
    To meet this test, it is sufficient for the Appellant to prove that the psychiatric disorder either arose "out of" or "in the course of" her employment.  It need not be both.

 Arising in the course of her employment

  1. [96]
    It has been said that "It has generally been accepted that these words do not require a causative element but a temporal one…"[108]
  1. [97]
    Commissioner Neate explained in Morrison v Workers' Compensation Regulator that:

An injury "in the course of employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[109]

 Consideration - Arising in the course of her employment

  1. [98]
    Aleesha worked at Council between March 2015 and August 2017.[110] 
  1. [99]
    It is not disputed that in the period she was engaged in the performance of her allocated duties at Council, Aleesha consulted her GP about: being stressed (although this was at the time attributed to worry that Andrew may soon be made redundant), issues with anxiety, difficulty sleeping, panic attacks with increasing frequency, and later worsening depressive symptoms.  Her condition descended to suicidal ideation, finally culminating in an urgent intervention by way of referral to a psychiatrist. 
  1. [100]
    It is not disputed that Aleesha reported having issues with "Customer Service" in her last employee assessment review in August 2017.
  1. [101]
    In the period when Aleesha worked at Council, it is not disputed that a number of incidents happened including:
  • threatening telephone calls or the receipt of telephone calls which might reasonably be perceived to be threatening
  • difficult telephone calls with persons who are upset, angry and difficult to deal with
  • abusive telephone calls with unhappy rate payers and residents
  • a specific occasion where Ms Skinner was abused by a rate payer while out shopping, on account of her work uniform[111]
  1. [102]
    Bearing in mind that what is required here is a temporal element, not a causative one, it is the case that Aleesha's psychiatric disorder arose "during" or "at a time when" she was at Council.
  1. [103]
    Further it is clear to me that Aleesha's psychiatric disorder arose whilst she was engaged in the work that she was employed to do in the relevant period. 
  1. [104]
    Aleesha's duties at Council largely required her to deal with rate payers and residents on the telephone, including those who were "unhappy", "upset, angry and difficult to deal with."  In the evidence before me, those certainly appear to have been both numerous and unrestrained.  As outlined at [101] above, it is accepted that these telephone calls were at times threatening, difficult and / or abusive.
  1. [105]
    With respect to the specific incident at [101] where Aleesha "was abused by a rate payer while out shopping, on account of her work uniform" and in the company of her young daughter, I consider that Aleesha's stop at the shops on the journey between her workplace and home whilst still in her work attire also satisfies the second limb of the requirement that something be related to, "or reasonably incidental to, the person's employment to do that work."  Where Aleesha was required to wear a work uniform that identified her as an employee of Council, I consider that to be related to and / or reasonably incidental to her employment to do that work.
  1. [106]
    For all those reasons, I find that the particular element "arising in the course of her employment" to be satisfied. 

 Arising out of her employment

  1. [107]
    In Linke v Simon Blackwood (Workers' Compensation Regulator), Commissioner Neate said:

…an injury which arises out of employment occurs where there is a causal connection between the employment and the injury. Although the words "arising out of" do not require the direct or proximate relationship which would be necessary if the phrase used was "caused by," there must be some causal or consequential relationship between the worker's employment and the injury.[112]

  1. [108]
    As observed by Jordan CJ and Roper J in Nunan v Cockatoo Docks and Engineering Co Ltd, "Was it part of the injured persons employment to hazard, to suffer, or to do that which caused his injury?  It must arise out of the work which the worker is employed to do – out of his service."[113]

 Consideration - Arising out of her employment

  1. [109]
    My consideration now turns to whether Aleesha's psychiatric disorder arose out of the work which she was employed to do. 
  1. [110]
    Was it part of Aleesha's employment "to hazard, to suffer, or to do" the duties that had some causal or consequential relationship to the onset of her psychiatric disorder? 
  1. [111]
    It is accepted that it was part of Aleesha's duties to handle telephone calls that were sometimes abusive[114] and "a number of which could be described as difficult."[115]  In one particular incident, such abuse occurred after working hours though whilst Aleesha was wearing her work uniform.
  1. [112]
    Aleesha and her family members gave evidence about their observations of the impact those incidents had on Aleesha. 
  1. [113]
    Whilst it was accepted that Aleesha's memory was affected as a result of the course of treatment undertaken, both her husband and mother-in-law gave evidence in support of her claim that work had caused her psychiatric illness.
  1. [114]
    Aleesha's evidence was that she was confronted at the supermarket by both another customer and a retail worker about "…the cost of rates and what's the point.  Youse don't do anything.  That type of content."[116] 
  1. [115]
    She said that "the Supermarket Incident" had the following effect on her:

It rattled me a fair bit, especially 'cause I did have my daughter with me as well and I did steer clear of that supermarket.[117]

  1. [116]
    Whilst Aleesha didn't report the supermarket incident to the police or formally to Council management, she did speak about it to "…the girls that worked there" (that is, colleagues in her work team).[118]
  1. [117]
    Soon after that incident, Aleesha recalled a caller contacting Council about "roaming dogs out in Calliope and I believe they were also barking, complaint dogs as well, and the person wasn't happy with how it was being handled, I guess you could say.  So they threatened to basically come find us and shoot me."[119]  The effect that had on her was that Aleesha was "Rattled and a bit shaken by it."[120]  At the time, Aleesha also discussed that incident with colleagues in her work team and the supervisor.  Her evidence was that "I even had the mayor at the time come and see me and apologise and said to basically go home and have a glass of wine."[121]
  1. [118]
    Aleesha also gave evidence about "the Ms B.S Incident" and noted "She was not so nice.  There was a few occurrences with her.  She was a known one to council but, yes, she was never very nice."[122]
  1. [119]
    Finally, there was "the Mr P.C Incident" in which the caller complained about an overgrown property and "was not so nice calling names because he wasn't happy with the approach or what had or hadn't been done."[123]
  1. [120]
    Aleesha's evidence was that she was abused by callers to Council on a weekly basis.  She said the sort of names she would be called were "Just the bitch, stupid, I think I was even called a mole at one point.  Almost pretty much every name that you can think of I've probably been called it."[124]
  1. [121]
    Aleesha stated that the abusive calls became greater around animal registration time.  She said she would have to call people that hadn't renewed their registration and "basically ask them to pay for it.  Some of them were great.  They'd just forgotten.  Some of them were deceased animals.  But most of the people weren't so happy about having to pay again… They didn't want to pay for their registrations.  Yes.  They just weren't happy about paying.  They'd call names.  They'd be abusive.  They'd take out their frustration, basically."  Aleesha explained that those abusive callers would take their frustration out on her, "on the other end of the phone…By calling me names, yelling, screaming, swearing."[125]  She recalled debriefing these calls with her work colleagues.
  1. [122]
    Andrew's evidence was that Aleesha talked to him about her work.  He recounted:

That's always what her family did at dinner time.  They always sit down and talk about their day, and – I was never one for it because if I – when I finish work, I like to leave work at work and – but she always liked to talk about it.[126] 

  1. [123]
    He said that:

She always used to tell me about the phone calls she used to receive, the threats she used to get, and basically, it's just – a lot of the time it just felt like it was non-stop.[127]

…

It's probably the longer she was there, the more she started to talk to me about it.  Probably more so towards the end of her employment there as well, it was – it seemed to be getting worse.  But I don't know if that was just because it was just a gradual build up over time, like, to – to start with, she just sort of maybe just brushed it off and never thought much of it.  I'm not too sure.  And then after a while, it was just getting too much.[128]

  1. [124]
    Andrew's observation of the cumulative effects of the abusive phone calls on Aleesha were that:

I guess just the mannerism and the way she was speaking about them.  Like, she used to be, you know, "I had this abusive phone call today", and used to sort of just – like it was nothing, used to just brush it off.  But then at – at the end, you could tell it was starting to wear her down a little bit, and actually what – slightly affecting her.[129]

…

Just her mood, like, she just – she kept saying, "I love my job, but I don't like this aspect of it and the calls", and things like that.[130]

  1. [125]
    Neree gave evidence about the effect the abusive phone calls at work were having on Aleesha. At the Hearing, Neree said that "One that really upset (Aleesha) was (Mr P.C) in particular."[131] She was able to conclude Aleesha was upset by that call because of:

The way she was talking to me on the phone, almost in tears.  You can hear it in her voice.  She's very – when she talks, she's very emotive, and you can hear that it's had – it had a profound effect on her.[132]

  1. [126]
    Neree also spoke of the effect of the "Supermarket Incident" on Aleesha, in these terms:

…when she was in her work uniform and she went to the shops, and she was abused by someone in the shops there, and you know, that – that – it took her a long time to try and get over that.[133]

  1. [127]
    Further, Neree's evidence as to general observations of Aleesha's deterioration were that she:

…started to become withdrawn and didn't want to go out in public in case there was somebody there that might want to have a go at her, or say something to her.  She didn't want any sort of confrontation.  And it just sort of increased over a period of time.[134]

  1. [128]
    Ms Ali Moore (Aleesha's colleague and then supervisor for a time) recounted Aleesha "getting quite frustrated"[135] after a difficult phone call and confirmed that certain calls had affected her.[136]  Indeed, Ms Moore agreed that Aleesha had been "visibly upset" on occasion.[137]  Ms Moore also recalled Aleesha telling her that "she didn't feel quite right",[138] though that was in reference to physical symptoms.[139] 
  1. [129]
    Ms Moore was sufficiently concerned about the "Ms B.S Incident" to have notified the manager that it had occurred because "it was a customer that called quite frequently, and there was very little we could do about her calls, so I flagged it with the manager, and we left it with the local laws team and the manager".[140]  At different times, Ms Moore also altered the phone system so that Aleesha was not the first person to receive calls when the volume of calls was getting on top of her and she needed some time off line to complete other tasks.[141] 
  1. [130]
    Notwithstanding that, it is said that Ms Moore advised that Aleesha replied that she was "fine", rejected the suggestion to see her doctor and did not otherwise tell Ms Moore that her work was having a negative impact on her psychologically at the time.[142]
  1. [131]
    Ms Moore's overall impression was that whilst Aleesha "was the first person to receive calls she handled the difficult calls which are part and parcel of the role as well as could be expected."[143]
  1. [132]
    Five Employee Achievement Review Plans (EARP) were in evidence in this case.  In August 2017, Aleesha identified the "people issues" she was having as "Customer Service" and reported that she was "handling the load" "ok" in what would be her final EARP.[144]  That departed from previous EARPs, where Aleesha had reported nil "people issues" and that she was "handling the load" either "good" or "well".[145]
  1. [133]
    By her own account, Ms Moore was sufficiently concerned to have checked in with Aleesha and changed the system of work so she was protected from the 'first port of call' position for a while.  Those actions are outlined in [129] above.
  1. [134]
    Aleesha had self-assessed the emerging concern with "Customer Service", which I accept to have meant the large number of difficult, threatening and / or abusive callers she had to deal with in the course of her work.
  1. [135]
    The medical experts who gave evidence in this case also opined on the likelihood of a significant connection or contribution between Aleesha's work and the onset of her psychiatric disorder.
  1. [136]
    Dr Lotz's report referred to "the history of abuses that occurred whilst working as a customer service officer"[146] and in summary he noted that:

It appears that she was abused not only on the phone, but also in public, when she went shopping with her child, by unhappy clients in Gladstone.

It appears from the above reports that over a period of time, her anxiety and depression worsened…[147]

  1. [137]
    Dr Lotz concluded that whilst Aleesha had "a pre-existing history of eating disorder and anxiety and depression", she had (emphasis added):

…developed features of anxiety and depression as a result of exposure to difficult clients, both telephonically and in person, being confronted in public places.[148]

  1. [138]
    At the Hearing, Dr Lotz was asked what he considered to be the major significant cause of Aleesha's presentation.  He stated (emphasis added):

Well, from – from the history that I got, it seemed to be that it was the difficulties in the workplace dealing with ungrateful and quite abusive clientele… She said that she was functioning, she had been in the job for an extended period of time… And then over time it just wore her down.[149]

  1. [139]
    Dr Gunn reached a different conclusion in her report (emphasis added):

I cannot confirm attribution of the development of her emotional symptoms to the workplace.  I note Ms Skinner has a strong genetic predisposition to psychiatric illness.  I note at the time in 2016 and to mid-August 2017 there was no attribution in any of the records provided by her workplace, general practitioner or her treating psychiatrist that there was any attribution to any extrinsic or external factor other than concerns regarding the tenure of her husband's employment.  It does appear that her husband suffered loss of employment and a period of unemployment until commencing work in his family's business.  It appears that when Ms Skinner suffered increased symptoms that she developed a sensitivity to the workplace.  It is my opinion that this does not result in a clear attribution to the workplace. (Ms Skinner also developed a sensitivity to crowds – which does not result in attribution of symptoms to crowds).  I note Ms Skinner reported to me that she enjoyed her work, was in a good team and felt supported.[150]

  1. [140]
    Dr Gunn's report noted that no attribution was requested of Dr Duke and further states that "I cannot support the contention by Dr Lotz that attribution was nominated by Dr Duke or her treating psychiatrist".[151]  She went on to comment that:

I note it was only later did her treating psychiatrist attribute a sensitivity to the workplace rather than attribution of aetiology.  It was not until after Ms Skinner's husband suggested attribution to the workplace that the treating psychiatrist made attribution to the workplace. It is my opinion that this was retrospective and in contradiction to the treating psychiatrist's contemporaneous comments that there was no trigger.[152]

  1. [141]
    It is accepted that Aleesha's memory is significantly impacted as a result of the course of treatment applied for her psychiatric disorder.  In her evidence, Aleesha freely owned that impact as:

 A big impact.  I struggle to remember a lot of things.

 …

I just can't recall them.  I really struggle.  It's just blank.  Sometimes I can vaguely remember some things but the finer details or even whole events are just gone.[153]

  1. [142]
    On the basis of her illness and treatment, it is accepted that Aleesha is a poor historian.  Notwithstanding that, Dr Lotz,[154] Dr Steele[155] and Dr Gunn[156] had need to rely on the history given to them by Aleesha, in order to opine on the cause(s) of her condition.
  1. [143]
    At the Hearing, Dr Gunn was asked to comment on the proximity of both the "Ms B.S incident" on 20 June 2016 to Aleesha's presentation to her GP about a month later – and the "Mr P.C incident" on 17 February 2017 to Aleesha's presentation to her GP on 2 April 2017, at which she reported having issues with anxiety for a month now, difficulty sleeping and panic attacks with increasing frequency. 
  1. [144]
    With respect to the proximity of the "Ms B.S incident" to the GP visit,[157] Dr Gunn conceded the short time period between the two and said:

That's right.  It's very close, isn't it? …And so this stuff takes more – more significance.[158]

  1. [145]
    With respect to the proximity of the "Mr P.C incident" to the GP visit, Dr Gunn commented that she did not have access to the dates of either event when writing her report but stated that:

…They are significant events…And I did not have access to the timing of these events…And they – they again – we're looking at the development of symptomology and possible reasons for it…And they seem to me to be quite significant.[159]

  1. [146]
    Having been provided with the further information regarding the timing of those events at the Hearing, Dr Gunn conceded that work was a significant factor in Aleesha's psychiatric disorder. 
  1. [147]
    The summary of Dr Steele's evidence at the Hearing was that:

I wouldn't minimise that verbal harassment or those threats that were made.  I think she was very distressed by them.  So I can't exclude that they are not a significant contributing factor.  I think they're very much part of the precipitation of the illness at that point.[160]

  1. [148]
    The factual incidents that happened to Aleesha in the course of her employment at Council are not disputed in this case. 
  1. [149]
    The evidence of Aleesha, Andrew and Neree was that the cumulative effect of those incidents impacted on Aleesha over a period.
  1. [150]
    Dr Steele, Dr Lotz and Dr Gunn concluded that these work incidents were (at least) significant events in the onset of Aleesha's psychiatric disorder.
  1. [151]
    It is recognised that the GP notes do not contain any complaint about the work environment, but rather indicate Aleesha had described it as "good".[161]
  1. [152]
    For the sake of completeness, it is also noted that Dr Duke's report contained only brief comment that the onset of Aleesha's psychiatric disorder "occurs on a genetic vulnerability for depression as well as past problems with depression including in the postnatal period".[162]  However, in response to whether there would be a risk of re-injury should Aleesha return to her position with Council, Dr Duke observed that (emphasis added):

Ms Skinner reports that the customer service aspect of her role involves regular contact with angry and abusive members of the public.  I believe that if she was returned to this role too early there is a risk that these negative interactions could lead to a recurrence of her depressive illness.  When her psychiatrist deems her well enough to begin a return to work process consideration of modification of the duties to reduce the amount of customer service duties in her role may need to be considered.[163]

  1. [153]
    For all those reasons, I find that the particular element "arising out of her employment" to also be satisfied. 
  1. [154]
    In my view, Aleesha's psychiatric disorder both arose "out of" and "in the course of" her employment at Council.

Was Aleesha's employment the "major significant contributing factor" to her psychiatric injury?

  1. [155]
    Having found that work was a significant factor in the onset of Aleesha's psychiatric disorder, my consideration now turns to whether it was the "major significant contributing factor", in accordance with the elements of a compensable "injury" so defined under s 32 of the Act.
  1. [156]
    It is not disputed that the cause of Aleesha's psychiatric injury is multifactorial. 
  1. [157]
    At the Hearing, Dr Gunn stated that:

…I mean retrospectively now we're getting some sort of history…How much they contribute is an incredibly difficult thing to weigh up, simply because there are so many things to weigh up in this situation.[164]

  1. [158]
    The evidence before me addressed several factors that could be said to have contributed to the onset of Aleesha's psychiatric disorder.  Those were:
  • Work

Aleesha's employment with Council caused her to have interactions with rate payers and residents, some of whom were verbally abusive, threatening, angry and / or distressed.

These incidents are detailed at paragraphs [16], [101] and [114]-[121] above and need not be repeated here.

Dr Steele explained that the fact that Aleesha did not get better after leaving her employment with Council does not mean that her work was not significant in triggering her injury.[165]

  • Genetic vulnerability and past history

The evidence before me is that the two factors of genetic vulnerability and past history are typically looked for in making diagnoses of major depressive disorder.

With respect to a genetic vulnerability, it is accepted that Aleesha's mother also suffered from psychotic depression.[166]

At the Hearing, Dr Gunn agreed that she had considered the possibility that Aleesha's Major Depressive Disorder was an "endogenous illness that developed without a specific stressor", saying "I think I highlighted the genetic predisposition which is another way of saying that.   But there were – there were other stressors."[167]  Dr Gunn said:

…I'm trying to stress that we have so many factors and – and I really think that there's – there's just so many.  And – and she's got this horrendous genetic predisposition...[168]

Where there is a pre-existing vulnerability to injury, it was established in Q-Comp v Foote (No 2) that:

…a fragile psychological makeup is no more a bar to entitlement to benefits under the Act that an eggshell skull.  Where the psychological disorder develops out of a worker's perception of reasonable management action been taken against the worker it is withdrawn from the definition of injury…However, those very significant statutory qualifications aside, an insurer takes a worker with all his faults.[169]

Dr Lotz accepted that major depression was endogenous in nature "most of the time…Generally speaking, we'd say that major depression is endogenous and adjustment disorder is more reactive…but there isn't a clear cut line between the two."[170]

With respect to her past history of mental health issues, whilst it is recognised that Aleesha had adolescent depression, a period where she was tired and struggling after the birth of her second child and the onset of a psychiatric disorder in 2017, Dr Steele's opinion was that these were all quite different presentations.[171]

I have earlier addressed the question of whether or not Aleesha's particular psychiatric disorder of Major Depressive Disorder could be said to be "recurrent" – and in short I have agreed with the submission that "There is no evidential basis upon which the Commission can form an opinion that Appellant has previously suffered a severe psychiatric illness."[172]

  • Husband's possible redundancy

Aleesha attended her GP on 28 July 2016.  It was noted that she was "stressed about life situation – husband might become redundant soon."

Andrew worked in construction and the nature of the industry is that projects come to an end and work on the next job must then be secured.  However, Andrew and Aleesha had a back up plan to provide for their family financially, through the ebbs and flows of local demand for workers on construction projects.  Andrew's dad, Kevin, worked for himself in his own business and the door was open for Andrew to go and work with him, should the need ever arise.[173] 

His evidence was supported by Neree and Aleesha.[174]

While it is now clear from those accounts that Aleesha did not need have worried about the family's financial situation in the event of Andrew's redundancy, the GP notes indicated that she may have done so nonetheless.  However, given the proximity between that first GP attendance with psychological symptoms and the 'Ms B.S Incident' some five weeks prior, I find it more probable that Aleesha's stress was real though she herself was unable to identify its true root cause at that time.

I do not find this factor to have been significant in the onset of Aleesha's psychiatric disorder.

  • Physical illness

Aleesha was said to have suffered with ongoing sinusitis[175] or another physical illness.

Aleesha consulted her GP several times throughout 2016 and 2017 about headaches, facial pain, blocked and runny nose.[176]  Though it was also suggested that some of those symptoms may also be accounted for as side effects of medication prescribed to Aleesha between April and July 2017.[177]

In Dr Steele's opinion, it was "very unlikely" that sinusitis would trigger the onset of psychotic depression unless "it was a severe chronic sinusitis causing extended contracted pain.  I could see that there might be a correlation between the development of the patient if you're struggling with significant facial pain from a chronic sinusitis.  But otherwise, no.  There wouldn't be a direct correlation between the two."[178]

Dr Gunn nominated physical illness as significant, though declined to go as far as to say it was the major significant contributing factor. 

Dr Gunn said that "…I now have the information from Dr Elphinstone that she suffered the sinusitis said we now know, also then it was mistreated or not treated.  So, I mean she – that's still significant.  The reflux is neither here nor there, it's very common, but again that wasn't treated."[179]  However, Dr Gunn further clarified that "…my difficulties certainly lay in – in sorting out and proportioning because…we've got a lack of clarity after…the end of 2017 on getting clarity from her as to contributing factors…So, you know.  I can't – I can't – I can't say major on it and I think that's where it – it may very well be significant."[180] 

In cross-examination, Dr Gunn acknowledged that she had inadvertently overstated the number of visits Aleesha had made to her GP with this complaint.[181]

The Appellant has submitted that:

The only evidence available to the Commission in relation to the Appellant's sinusitis are the records of the GP Super Clinic including the radiology report at pages 21 – 22 of Exhibit 2 and the letter of Dr John Elphinstone at page 23.  Dr Elphinstone's letter confirms that the findings of the radiology report do not explain the Appellant's facial pain symptoms.  Dr Elphinstone provided a working diagnosis of mid face pain and reflux based on a single consultation with the Appellant.  The Commission should conclude that there is insufficient evidence to prove that the Appellant was suffering from any physical illness at the time she developed her major depressive disorder.[182]

  • Father uncontactable

Aleesha was sometimes not able to contact her father.

When Aleesha consulted her GP on 2 April 2017, the visit notes made included:

She felt oneday recently, that she could not contact her father and she felt like she her father is passed away – she was unset on that day; she know he was busuy but her thoughts were like that [sic];[183]

At the Hearing, Aleesha explained the extent of her "worries and stresses" with her dad as:

Sometimes it's just – you cant get in contact with him so it's – he's – not uncommon, like, what's he done now or, you know, is he all right because he lives by himself.

…

It sometimes just like a, you know, has he had a fall or, you know, is he all right, but generally you can get him on the phone again or we'd go for a drive.[184]

I do not find this factor to have been significant in the onset of Aleesha's psychiatric disorder.

 Consideration of the three remaining factors

  1. [159]
    I now turn to the consideration and weighing of those various factors found to be "significant", in order to determine whether or not Aleesha's employment was the "major significant contributing factor" causative of her psychiatric disorder. 
  1. [160]
    Having excluded Aleesha's concerns about Andrew's possible redundancy and difficulties contacting her father sometimes, the remaining factors that I have accepted may be "significant" to the onset of her Major Depressive Disorder are: physical illness; genetic vulnerability and past history; and work.

 Consideration – Physical illness

  1. [161]
    Dr Gunn's evidence was that Aleesha's physical illness and chronic pain may have contributed to the onset of psychiatric symptoms.  However, in cross-examination Dr Gunn acknowledged that she had inadvertently overstated the number of visits Aleesha had made to her GP with that particular complaint.[185]  Whilst Dr Gunn opined that the physical illness / sinusitis "may well be significant", she declined to say it was "major".
  1. [162]
    Dr Steele opined it was "very unlikely" that sinusitis would trigger the onset of psychotic depression unless "it was a severe chronic sinusitis causing extended contracted pain.  I could see that there might be a correlation between the development of the patient if you're struggling with significant facial pain from a chronic sinusitis.  But otherwise, no.  There wouldn't be a direct correlation between the two."[186]
  1. [163]
    In short, I am not persuaded that the records of the GP Super Clinic and the letter of Dr John Elphinstone evidence that Aleesha was suffering facial pain to such a degree that would trigger the onset of Major Depressive Disorder. 
  1. [164]
    I am mindful of the medical expert opinions of Dr Gunn and Dr Steele on this point, including the former's evidence that whilst this factor "may well be significant" she stopped short of attributing it to be the major factor in this case.
  1. [165]
    I do not find this to be the major significant contributing factor to Aleesha's psychiatric disorder.

 Consideration - Genetic vulnerability and past history

  1. [166]
    I acknowledge Dr Lotz's evidence about the occurrence of Major Depressive Disorder.  That is, it is endogenous in nature (emphasis added) "most of the time…Generally speaking, we'd say that major depression is endogenous and adjustment disorder is more reactive…but there isn't a clear cut line between the two."[187]
  1. [167]
    That aligns with Dr Gunn's reflection that whilst she had considered the possibility that Aleesha's Major Depressive Disorder was an endogenous illness that developed without a specific stressor, she further clarified that (emphasis added):

…I'm trying to stress that we have so many factors and – and I really think that there's – there's just so many.  And – and she's got this horrendous genetic predisposition...[188]

  1. [168]
    Dr Steele too observed that Aleesha's injury developed due to (emphasis added) "…her past history and her teenage years and also her genetic biological history with her mum.  And you generally have a trigger where all the holes line up to express the illness."[189] 
  1. [169]
    Dr Steele also stated that Aleesha's psychiatric disorder "tends to be a genetic biological condition"[190] and accepted that has no identifiable trigger "sometimes",[191] although did not agree that was often the case.[192]
  1. [170]
    In summary, it is accepted that the Major Depressive Disorder was multifactorial in its aetiology.  I recognise that the medical experts have opined that while the condition can emerge without a trigger, that is not always the case and there are "so many factors" here.  For those reasons, I do not believe that Aleesha's psychiatric disorder was endogenous. 
  1. [171]
    In my view, in circumstances where Aleesha's Major Depressive Disorder may have emerged with a trigger, and there are "so many factors" here, I find that is what most likely occurred on the balance of probabilities. 
  1. [172]
    While Dr Gunn's observation that "if she did not have that genetic predisposition…I can't see that…a person of normal fortitude would have suffered…that severity of illness" is certainly most apposite, I am persuaded that the psychiatric disorder did not emerge on its own but was instead caused by the culmination of incidents Aleesha was exposed to whilst working at Council.  The proximity of the more recent work incidents to presentations to her GP with psychological symptoms is particularly significant.
  1. [173]
    For those reasons, I will exclude 'genetic vulnerability and past history' as the "major significant contributing factor" to Aleesha's psychiatric disorder and turn to a fuller consideration of the impact of her employment.

 Consideration – Work

  1. [174]
    At the Hearing, Dr Lotz was asked what he considered to be the major significant cause of Aleesha's presentation.  He stated (emphasis added):

Well, from – from the history that I got, it seemed to be that it was the difficulties in the workplace dealing with ungrateful and quite abusive clientele… She said that she was functioning, she had been in the job for an extended period of time… And then over time it just wore her down.[193]

  1. [175]
    Dr Lotz thus considered that work was that the workplace was the major significant cause of Aleesha's illness.
  1. [176]
    Having been provided with the further information regarding the timing of the "Ms B.S Incident" and "Mr P.C Incident" relative to Aleesha's presentation to her GP, Dr Gunn conceded at the Hearing that work was a significant factor in Aleesha's psychiatric disorder.  Dr Gunn said:

…They are significant events…And I did not have access to the timing of these events…And they – they again – we're looking at the development of symptomology and possible reasons for it…And they seem to me to be quite significant.[194]

  1. [177]
    In cross-examination, Dr Gunn was invited to reconsider her opinion as to the cause of Aleesha's psychiatric disorder.  She responded that (emphasis added):

I would say work was a significant factor.  I can't determine major, because of the way that there isn't in the contemporaneous notes it – there – there [sic] the things I have relied on because of the – that is what we have… I am struggling to say major, because of the way she denied it, that work was a stressor.[195]

From those comments, it appeared to me that what held Dr Gunn back from attributing work to be the major significant contributing factor was Aleesha's denial that work was a problem – and Aleesha's otherwise failure to identify that as the underlying cause.  I will now address my consideration of each of those points.

Aleesha's report that "work is good"

  1. [178]
    The GP notes of Aleesha's consultation on 6 July 2017 stated (emphasis added):

Work is good.  Works with her best friends. 

Very supportive husband.  He has been extra helpful lately with the five and six year old children.[196]

  1. [179]
    It has been said that "There is not only an absence of complaint about the work environment but a positive reference to it being 'good'."[197] 
  1. [180]
    In my experience, a person's response to a general inquiry as to "how's work?" typically goes either to a discussion about the nature of their "work" tasks, projects and responsibilities currently undertaken (the nature of the work performed) or the people they "work" with (collegial relationships and the work team).  Aleesha obviously liked her work colleagues, referring to them as her "best friends" to the GP.  Aleesha debriefed with "the girls that worked there"[198] after some nasty work incidents.  She went out socialising with her work friends.  Andrew said that when Aleesha talked to him about her work "…she kept saying "I love my job, but I don't like this aspect of it and the calls", and things like that."  It is also the case that about three weeks after Aleesha told her GP that "work is good", she self-assessed in her periodic EARP that she was handling the load just "OK" and stated that she was having people issues with "customer service."[199]  What I discern from all that is that Aleesha liked the people and the general nature of administration work – but was increasingly struggling with the confronting and abusive calls component of her job.  That is quite understandable in my view.
  1. [181]
    In light of that, the question of how Aleesha's psychiatric injury came to be attributed to work arises. 
  1. [182]
    It has been said that "I take into account that concerns about work possibly being a contributing factor were first expressed by Ms Skinner's husband in the consultation of 21 August 2017 by which time Ms Skinner had been diagnosed with a psychiatric injury and prescribed psychotropic medication."[200]
  1. [183]
    The GP notes indicated that it was Andrew who had first suggested that to be the case.  On 21 August 2017, Dr Gitsham noted that Aleesha "yesterday increased anxiety at the thought of returning to work today… Husband concerned her work may be contributing factor."[201]
  1. [184]
    I note that Dr Gunn's report concluded that it was not until after Andrew suggested work was the cause of Aleesha's condition that Dr Steele made that attribution to the workplace, contrasting that to the previous commentary that there appeared to be "no trigger".
  1. [185]
    Andrew said that he didn't believe he had raised anything about Aleesha's work being the issue with the onset of her psychiatric condition, but that had rather emerged from Dr Steele's questioning as to possible cause. 
  1. [186]
    At the Hearing, Andrew's evidence was that:

Mr Moon: All right.  Now, when you say towards the end of Aleesha's employment you noticed some sort of change in her, did you ever raise with Aleesha, or did she ever raise with you, what thought the cause may have been?

Mr Skinner: No

Mr Moon: No.  All right.  Did you ever go with Aleesha to see Dr Steele?

Mr Skinner: Her first couple of appointments, yes.

Mr Moon: All right.  Okay.  And did you ever raise with Dr Steele anything about Aleesha's employment being any sort of issue?

Mr Skinner: I don't believe so.  I think it was more the questions Dr Steele was asking to find out the background information and – of what may have possibly led to it.  I don't believe I'll ever stated anything that that was the reasoning behind it.[202]

  1. [187]
    He was not cross-examined on that evidence. 
  1. [188]
    Again, I find it reasonable that having secured Aleesha's safety as the immediate priority, Dr Steele then proceeded to deep-dive into the factors that may have caused her psychiatric disorder.  It is also entirely understandable that Aleesha's supportive "best friend" and husband Andrew was in attendance at the initial sessions with Dr Steele, in order to answer questions that may have been asked of him to help the doctor to understand what may be the underlying cause of his wife's serious condition.

Aleesha's failure to identify work as the underlying cause

  1. [189]
    When Aleesha consulted her GP on 10 August 2017, Dr Gitsham urgently referred her to Dr Steele. The GP referral stated that:

Aleesha can't identify any astringent factors which led to her symptoms.[203]

  1. [190]
    It is accepted that Aleesha herself was initially unable to identify "work" as the cause of her illness.  So what, if anything, is to be made or inferred from the delay in identifying Aleesha's employment to have caused or contributed to the onset of her psychiatric condition?
  1. [191]
    Having diagnosed Aleesha with "major depression severe with psychotic features",[204] Dr Steele's evidence was that the first order issue was risk management to keep Aleesha safe.  Once secured, the focus of the ensuing consultations were able to move to further exploration of cause.[205] 
  1. [192]
    On 11 August 2017, Dr Steele's correspondence stated:

There does not appear to be any obvious trigger in her current presentation.  However it is escalating as it has done over the past five to six months.[206]

  1. [193]
    On 21 August 2017, Dr Gitsham noted that Aleesha "yesterday increased anxiety at the thought of returning to work today… Husband concerned her work may be contributing factor."[207]
  1. [194]
    Shortly thereafter on 8 September 2017, Dr Steele first attributed Aleesha's work to causing her psychiatric disorder when she identified a concern with "what appears to be a traumatic response to the workplace"[208] - and in separate correspondence that same day, she wrote about "…vicarious trauma in the workplace.  She works in regulation part of council and frequently has to deal with abusive calls and at times death threats..."[209] 
  1. [195]
    At the Hearing, Dr Steele was asked about the effect of psychotic depression on a patient's insight into the cause of their condition.  Her evidence was that it was "very common".  Dr Steele further stated:

And I think made even more difficult if you consider the type of depression that Aleesha was suffering with … I've noted on my initial assessment with her, that she presents a little confused and perplexed.  So you know, her ability to filter through all of that detail would have been impaired…[210]

  1. [196]
    In cross-examination, Dr Gunn's evidence was that "it happens" that people may not be able themselves to attribute a cause to their symptoms - and that could not be excluding that occurred in Aleesha's case.[211]
  1. [197]
    Similarly, Dr Lotz's evidence was that "…Ms Skinner herself may not have realised that that was the problem and not being able to verbalise it either to her GP or treating psychiatrist."[212]
  1. [198]
    The evidence of the medical experts is persuasive, in that Aleesha's initial inability to identify work as the cause of her condition is not unusual or inconsistent in someone suffering from that type of depression.
  1. [199]
    At the Hearing, what held Dr Gunn back from attributing work to be the major significant contributing factor was "the way that there isn't in the contemporaneous notes" and "because of the way she denied it, that work was a stressor".  I have addressed my consideration with respect to those two arguments above.  Aleesha's initial lack of recognition of the impact of work on her health is explained with reference to the medical evidence and my reasoning, as outlined above. 
  1. [200]
    Dr Steele's evidence at the Hearing was that the "verbal harassment or those threats that were made" so distressed Aleesha, "…I can't exclude that they are not a significant contributing factor.  I think they're very much part of the precipitation of the illness at that point.[213] 
  1. [201]
    Dr Steele also commented that work was "the only stressor she spoke about in detail."[214]
  1. [202]
    At the Hearing, Dr Steele explained how factors could interrelate to contribute to the onset of mental illness in this way:[215]

In general, a good analogy for mental health conditions if that it's kind of like a Swiss cheese effect.  So you have, you know, Swiss cheese where you have the holes in it.  You have factors that predispose you and you – those would be her past history and her teenage years and also her genetic biological history with her mum.  And you generally have a trigger where all the holes line up to express the illness.  So you know, often for example with schizophrenia, you can have a young man who's at the right age, he's leaving home, he goes to university, he's got lots of stressors, he smokes cannabis, he develops the illness.  So my opinion would be in Aleesha's case, we certainly have predisposing factors, we certainly have a biological genetic history, and in terms of the biological history, the history of development of this illness in her family member was actually at a much later age than Aleesha developed it.  But you've got that teenage vulnerability, the genetic vulnerability, and then you've got some fairly significant stressors in the workplace.  I wouldn't minimise that verbal harassment or those threats that were made.  I think she really was very distressed by them.  So I can't exclude that they are not a significant contributing factor.  I think they're very much part of the precipitation of that illness at that point.[216]

  1. [203]
    Dr Gunn explained the point from a different perspective, stating:

When – when I think that we're talking about so many factors here that it's just very difficult to say major on any particular one of them.  However, if she did not have that genetic predisposition, because it so clearly mirrors the mother's illness, I can't see that on a person of normal fortitude would have suffered – again, that – that severity of illness."[217]

  1. [204]
    With respect to Dr Steele's and Dr Gunn's explanations above, I appreciate that without the underlying genetic vulnerability and past history of adolescent depression, Aleesha may not have suffered Major Depressive Disorder when the series of workplace incidents occurred. 
  1. [205]
    However, I also believe that if Aleesha was not exposed to the onslaught of abuse in the course of her work, that genetic vulnerability may not have been triggered and such a "severity of illness" expressed at all.
  1. [206]
    In my view, having a genetic vulnerability to and past history of adolescent depression was not the major significant contributing factor that caused the onset of Aleesha's Major Depressive Disorder.  In light of the work related events, I find it more probable than not that it was rather the persistent onslaught of abusive interactions she experienced in the course of her employment over a period of time that so triggered the emergence of that illness.
  1. [207]
    I find on the balance of probabilities that Aleesha's employment was the major significant contributing factor to her psychiatric disorder.

Did Aleesha's psychiatric disorder arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment?

  1. [208]
    A psychiatric or psychological disorder is not taken to be an 'injury' under the Act where it arises out of "reasonable management action taken in a reasonable way by the employer in connection with the worker's employment". 
  1. [209]
    The definition of injury, per the iteration of the Act at the relevant time, provides for that exclusion as follows (emphasis added):

32    Meaning of 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.
  1. [210]
    At the Mention of this matter, on the suggestion of the Appellant's representative, the parties agreed that a further question to be determined at Hearing was whether the employer's response to Aleesha's workplace complaints constitute reasonable management action taken in a reasonable way.[218]  The relevance of that being that a psychiatric disorder is not taken to be an 'injury' under the Act where it arises out of "reasonable management action taken in a reasonable way by the employer in connection with the worker's employment". 
  1. [211]
    At the commencement of the Hearing, the Appellant's counsel submitted that:

Mr Moon: …The issues with respect to reasonable management action, that is not an issue that would need to be determined in this case.  It seems on the – at least on the response documents that reasonable management action, it should not be an issue that needs to be considered in this case.[219]

  1. [212]
    The Regulator's counsel concurred with that position and again in the written closing submissions clarified that:

As noted by the appellant's counsel at the commencement of the appeal hearing, there is no contention by the respondent that the appellant's personal injury arose in the course of reasonable management action.  Rather, the respondent's case is that the appellant's psychiatric condition did not arise from her employment at all.[220]

  1. [213]
    Notwithstanding that, I note the Respondent has included the question of "…did that personal injury arise in the course of management action that was reasonable and taken in a reasonable way?"[221] as a further issue for determination in this appeal.

 "Reasonable management action taken in a reasonable way"

  1. [214]
    Justice Martin has observed in Davis v Blackwood that:

The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  There may be any number of actions or combinations of actions which would satisfy s 32(5).  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.  Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.[222]

  1. [215]
    In Blackwood v Mahaffey, Justice Martin further said that:

The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied.  In the cases decided in this Court, any attempt to provide some type of formula or application of dominant cause has been rejected.  Section 32 must be applied in light of the evidence accepted by the Commission.  If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms a conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the workers favour must follow.[223]

  1. [216]
    Deputy President Merrell explained in State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator that:[224]

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.[225] 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.[226]

Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant.[227]  An imperfection in management action may not justify the characterisation of the management action as unreasonable.[228] 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.

Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case.[229] It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.[230]

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.[231] In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable.[232] 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.[233]

  1. [217]
    His Honour Martin J observed in Workers' Compensation Regulator v Langerak:

The ultimate question under s 32(5)(a) is whether the injury, not any one stressor, arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.  The determination made in respect of s 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole of the evidence.[234]

  1. [218]
    With respect to defining "management action", his Honour DP O'Connor (as he then was) referred to his earlier decision in Read v Workers' Compensation Regulator where he explained that:

Management action is not defined in the Workers' Compensation Act 2003.  Indeed, very little has been written in this jurisdiction to assist in the interpretation of the expression "management action".[235]

  1. [219]
    In Allwood v Workers' Compensation Regulator, his Honour further stated that (emphasis added):

The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment.[236]

 Consideration

  1. [220]
    I have earlier explained 'why' I have found work to be the major significant contributing factor to Aleesha's psychiatric disorder. 
  1. [221]
    I have accepted that a series of threatening and abusive interactions Aleesha had with members of the public in the period of her employment with Council was the major cause of her injury.
  1. [222]
    This was not a case where the worker was subject of management action applied to correct any real or perceived performance or conduct deficiency - and an injury thence resulted.  Council took no "management action" against Aleesha of the type provided in the examples of s 32(5) above.  It did not exercise, or indicate any intention to exercise, any of the suite of typical management actions such as transfer, demotion, initiation of a discipline process, redeployment, retrenchment, dismissal.  Nor did Council exercise, or indicate any intention to exercise, any decision against Aleesha not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.  This appeal was simply not that type of matter.  On the contrary, during her period of employment at Council, the various EARP reviews show that Aleesha was a valued contributor to her work team and delivered work of a high standard.[237] 
  1. [223]
    In this case, the Respondent appears to invite me to instead consider this particular criteria from a different perspective.  That is, essentially that the management action taken to support Aleesha was reasonable because she herself did not alert her supervisor to the progressive impact on her mental health and did not formally enliven steps within Council policies in place at the relevant time.
  1. [224]
    In my view, any management action taken to buffer Aleesha from the impacts of the negative interactions with the public was rather a light touch altogether.  Actions such as the (then) Mayor coming to see Aleesha, following a caller threatening to find and shoot her, and suggesting she go home and have a glass of wine could not be said to have caused her injury.  In hindsight, it was an example of an insufficient management response to a known hazard of Aleesha's employment – but that management action did not cause her injury.
  1. [225]
    If I am wrong on that point, I also find that Council's response was not 'reasonable management action'.  An example of that is to be found in Ms Moore's evidence.  At the Hearing, Ms Moore recounted that when she notified the manager at the time of the Ms B.S Incident, in accordance with Council policy, there was no formal report and that "no reports of anything during my time while I was in that role."[238]  Ms Moore stated that Council failed to monitor specific incident reports.
  1. [226]
    I find that Aleesha's psychiatric disorder did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment.

Costs

  1. [227]
    In light of my conclusions above, an order will be made in favour of Aleesha to allow the appeal and set aside the Respondent's decision dated 14 May 2020. I will now consider the issue of costs.
  1. [228]
    In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[239] Justice Davis considered the issue of costs in a Workers' Compensation Appeal and relevantly stated the following (citations removed):

[16] The power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act.   It therefore follows that costs ought ordinarily follow the event.   While costs would normally follow the event of the appeals to the QIRC, there is a discretion to make some other costs order.  In Davidson v Blackwood, the point is made that in the absence of any reasons to make any other costs order, costs follow the event.  That does not remove the discretion to make some other order and does not extinguish the necessity to give reasons why any costs order was made…

 …

  1. [1]
    Section 558 provides as follows:

  “558 Powers of appeal body

  1. (1)
    In deciding an appeal, the appeal body may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. (2)
    If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  1. (3)
    Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation.” (emphasis added)
  1. [2]
    By s 558(3), what is “in the appeal body's discretion” (here the QIRC ) are the “costs of the hearing”.  The “costs of the hearing” may be quite a different thing to the “costs of the appeal”.
  2. [3]
    The power to award costs is not a common law power.  It is one granted by statute.  Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so.

…

  1. [4]
    However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act.  In determining the proper construction of s 558(3), and in particular the meaning of the term “costs of the hearing”, regard must be had to the context and purpose of the section having regard to the statute as a whole.
  2. [5]
    In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC.  It has drawn a clear distinction between different parts of the appeal process.  While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given.  The costs are limited to the “costs of the hearing”.
  3. [6]
    The law of costs recognises “costs of action” and “costs of trial”.  In my view, they equate to “costs of appeal” and “costs of hearing” respectively.  The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:

“1.19   An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution.”

  1. [7]
    I accept that distinction.  I consider that the term “costs of the hearing” in s 558(3) is equivalent to “costs of trial” recognised by the law of costs and explained by Professor Dal Pont.
  2. [8]
    Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not “costs of the appeal” but “costs of the hearing” and costs assessors should assess the “costs of the hearing” as they would “costs of trial” as explained by Professor Dal Pont.
  1. [229]
    Section 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) provides that "A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission."
  1. [230]
    I accept that costs in Workers' Compensation Appeals ordinarily follow the event. Had the Respondent not defended this proceeding, Aleesha would not have incurred the expense which she did during the hearing of this matter. An award of costs in favour of Aleesha is reasonable and appropriate, not to punish the Respondent for defending the proceeding but rather out of fairness to Aleesha in ensuring appropriate indemnification. For those reasons, a costs order will be made in favour of Aleesha .
  1. [231]
    For the reasoning outlined in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[240] the Respondent will only be required to pay the "costs of the hearing" rather than the "costs of the appeal".

Conclusion

  1. [232]
    Aleesha Skinner had many years of experience in administration roles before commencing at Gladstone Regional Council. 
  1. [233]
    After working at Council for only a few months, Aleesha moved to a role in which she largely dealt with matters pertaining to impounded animals, noise complaints and other animal related complaints. 
  1. [234]
    Over the two and a half years that Aleesha worked at Council, her duties required telephone interactions with residents and ratepayers.  Many of those telephone interactions exposed Aleesha to abuse and aggression on a regular basis. 
  1. [235]
    On one occasion, a caller threatened to find and shoot her over a complaint about roaming dogs. 
  1. [236]
    Another time, she was confronted at the supermarket whilst wearing her work uniform and in the company of her young daughter. 
  1. [237]
    By August 2017, Aleesha was forced to cease work due to the onset of a severe psychiatric disorder.
  1. [238]
    Aleesha's application for workers' compensation was denied by LGW on the basis that her employment was not the major significant contributing factor to her psychiatric illness.  LGW further considered that Council had exercised "reasonable management action, taken in a reasonable way" in relation to the events Aleesha reported had contributed to her psychological distress. 
  1. [239]
    LGW's decision that s 32 of the Act operated to exclude Aleesha's psychiatric condition from the definition of 'injury' was confirmed by the Regulator on 14 May 2020.
  1. [240]
    Aleesha appealed the Regulator's decision.  That is the subject of this Decision.
  1. [241]
    In my view, Aleesha's Major Depressive Disorder arose out of, or in the course of, her employment at Council.
  1. [242]
    While it has been suggested that there were five factors that may have contributed to the onset of Aleesha's illness, I have determined only three of those to be “significant”. 
  1. [243]
    I have carefully considered and weighed the factors found to be significant in the development of the psychiatric disorder.  That is, physical illness, genetic vulnerability and past history, and work.
  1. [244]
    I have found there to be insufficient evidence before me to conclude the existence of such severe chronic sinusitis or other physical illness causing extended contracted pain at a level of severity as to trigger the onset of such a severe psychiatric condition.
  1. [245]
    My consideration then turned to whether it was Aleesha's genetic vulnerability and past history or her employment that was the "major" significant contributing factor to her injury.
  1. [246]
    It is accepted that Aleesha's Major Depressive Disorder was multifactorial in its aetiology.  I recognise that the medical experts have opined that while the condition can emerge without a trigger, that is not always the case and there are "so many factors" here.  On the balance of probabilities, I do not believe that Aleesha's psychiatric disorder was endogenous. 
  1. [247]
    While Dr Gunn has observed of Aleesha that "if she did not have that genetic predisposition…I can't see that…a person of normal fortitude would have suffered…that severity of illness", the proximity of the more recent work incidents to GP visits with psychological symptoms is particularly persuasive in my view.  On the balance of probabilities, I believe that Aleesha's psychiatric disorder did not emerge on its own but was instead caused by the culmination of incidents she was exposed to whilst working at Council. 
  1. [248]
    I have also considered whether Aleesha's psychiatric disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment. 
  1. [249]
    This was not a case where Aleesha was subject of management action applied to correct any real or perceived performance or conduct deficiency - and an injury thence resulted.  Council did not exercise, or indicate any intention to exercise, any of the suite of typical management actions against Aleesha of the type provided in the examples of s 32(5) of the Act.  This was simply not that type of matter.
  1. [250]
    If I am wrong on that point, I have also found any management action that was taken to buffer Aleesha from the impacts of the negative interactions with the public was so minimal as to be ineffective.
  1. [251]
    If I am wrong on that point, I have also found that any management action was not 'reasonable' due to an absence of formal reporting practices and monitoring failures.
  1. [252]
    I have concluded that "reasonable management action taken in a reasonable way" was not a factor causative of Aleesha's injury – and thus the injury remains one that is compensable under s 32 of the Act.
  1. [253]
    I order accordingly.

Orders

1. The appeal is allowed.

2. The decision of the Respondent dated 14 May 2020 is set aside.

3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.

4. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] T 1 – 72.

[2] T 1 – 71, lines 39 – 43.

[3] T 1 – 76, lines 39 – 41; As there are two Mr Skinner's and two Mrs Skinner's referred to in this Decision, I have referred to each of these individuals by their first names to enhance readability.

[4] T 1 – 13, lines 3 – 10.

[5] T 1 – 15, lines 27 – 30.

[6] T 1 – 77, lines 4 – 5.

[7] T 1 – 69, lines 20 – 23; T 1 – 11, line 45.

[8] T 1 – 77, lines 30 – 45; T 1 – 78, lines 1 – 12.

[9] T 1 – 71, lines 45 – 46; T 1 – 79, lines 4 – 5; Appellant’s Closing Submissions, 17 June 2021, 2 [5].

[10] T 1 – 18, lines 33 – 35.

[11] Ibid 37 – 40.

[12] Ibid line 44.

[13] T 1 – 73, lines 19 – 24.

[14] T 1 – 77, lines 7 – 10.

[15] T 1 – 74, lines 25 – 30.

[16] Ibid 39 – 40.

[17] T 1 – 79, lines 25 – 28.

[18] Ibid 28 – 32.

[19] Ibid 44 – 45.

[20] Respondent’s Closing Submissions, 5 July 2021, 8 [52].

[21] Ibid [53].

[22] Appellant’s Closing Submissions, 17 June 2021, 2 [5]; Respondent’s Closing Submissions, 5 July 2021, 1 [3].

[23] T 1 – 22; Appellant’s Closing Submissions, 17 June 2021, 2 [5].

[24] T 1 – 20; Appellant’s Closing Submissions, 17 June 2021, 2 [5].

[25] Ibid.

[26] T 1 – 21; Appellant’s Closing Submissions, 17 June 2021, 2 [5].

[27] Exhibit 1, 27.

[28] T 2 – 13; Appellant’s Closing Submissions, 17 June 2021, 2, [5].

[29] T 1 – 19; Appellant’s Closing Submissions, 17 June 2021, 2, [5].

[30] T 2 – 5; Appellant’s Closing Submissions, 17 June 2021, 2, [5].

[31] Exhibit 1, 75.

[32] T 1 – 23; Appellant’s Closing Submissions, 17 June 2021, 2 [5].

[33] T 2 – 12; Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[34] Exhibit 1, 83; Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[35] T 1 – 29; Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[36] Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[37] Exhibit 1, 17.

[38] Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[39] Exhibit 2, 17; Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[40] Exhibit 2, 13; Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[41] Exhibit 2, 11; Appellant’s Closing Submissions, 17 June 2021, 3 [5].

[42] Respondent’s Statement of Facts and Contentions, 7 October 2020, 6 [2].

[43] As diagnosed by Dr Gunn; Exhibit 2, 112.

[44] Appellant’s Closing Submissions, 17 June 2021, 7 [6.5].

[45] Exhibit 1, 7.

[46] Ibid 5.

[47] Ibid 3.

[48] Decision of the Workers’ Compensation Regulator, 14 May 2020, 3.

[49] Ibid.

[50] Ibid.

[51] Decision of the Workers' Compensation Regulator, 14 May 2020, 1–2.

[52] Kavanagh v Commonwealth (1960) 103 CLR 547, 558–559. 

[53] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447.

[54] [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 

[55] Respondent’s Statement of Facts and Contentions, 7 October 2020, 6 [1].

[56] T 2 – 2; Appellants Closing Submissions, 17 June 2021, 1 [3].

[57] Exhibit 2, 111; Respondent’s Closing Submissions, 1 [5].

[58] Exhibit 2, 111; Respondent’s Closing Submissions, 1 [5].

[59] T 2 – 2; Appellants Closing Submissions, 1 [3].

[60] Appellant’s Closing Submissions, 17 June 2021, 7 [6.5.1].

[61] Exhibit 2, 111; Respondent’s Closing Submissions, 5 July 2021, 1 [5].

[62] Exhibit 2, 111.

[63] T 2 – 51, line 21.

[64] Ibid 19.

[65] T 2 – 51, lines 25 – 29.

[66] Exhibit 2, 89.

[67] Ibid.

[68] Ibid.

[69] Ibid 2.

[70] Ibid 11.

[71] Ibid 43.

[72] T 1 – 88, lines 11 – 13.

[73] Ibid 16 – 18

[74] Ibid 20 – 24.

[75] T 1 – 99, lines 8 – 10; T 1 – 100, lines 21 – 22.

[76] T 1 – 100, lines 17 – 33.

[77] Exhibit 2, 69.

[78] Ibid 70.

[79] Ibid 76.

[80] Ibid 78.

[81] T 1 – 106, lines 10 – 12.

[82] Ibid 20 – 24.

[83] T 1 – 108, lines 14 – 15.

[84] Ibid 17 – 20.

[85] T 1 – 83, lines 43 – 44.

[86] Ibid 47.

[87] T 1 – 72, lines 2 – 7.

[88] T 1 – 50, lines 20 – 21.

[89] T 1 – 62, line 29.

[90] T 1 – 63, line 6.

[91] Ibid 6 – 8.

[92] T 1 – 63, line 24.

[93] Exhibit 2, 66.

[94] T 1 – 100, lines 21 – 22.

[95] T 1 – 99, lines 41 – 46.

[96] T 1 – 13, lines 25 – 31.

[97] Ibid 19 – 20.

[98] Ibid 18 – 20.

[99] T 1 – 88, line 24.

[100] Exhibit 2, 116.

[101] T 1 – 88, lines 16 – 18.

[102] T 1 – 85, line 41.

[103] Appellant’s Submissions in Reply, 12 July 2021, 3; Coles Supermarkets Australia Pty Ltd v Blackwood [2015] QIRC 011, 24-26 [120] citing Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16, 27 quoting Sotiroulis v Kosac (1978) 80 LSJS 112.

[104] Counsel for the Appellant, Ms Aleesha Skinner.

[105] Appellant’s Submissions in Reply, 12 July 2021, 3.

[106] Ibid; Davidson v Blackwood) [2014] ICQ 008, 5 [19].

[107] Exhibit 2, 2.

[108] LexisNexis, Industrial Law Queensland, Service 119, 110,116 [71,005].

[109] [2016] QIRC 065, [9].

[110] Appellant’s Closing Submissions, 17 June 2021, 2 – 3.

[111] Decision of the Workers Compensation Regulator, 14 May 2020, 8.

[112] [2014] QIRC 181, 41 [172]; also stated in Morrison v Workers' Compensation Regulator [2016] QIRC 065, [8].

[113] (1941) 41 SR(NSW) 119.

[114] T 2 – 6, line 43.

[115] Decision of the Workers Compensation Regulator, 14 May 2020, 8.

[116] T 1 – 20, lines 33 – 34.

[117] Ibid 43 – 45.

[118] T 1 – 21, lines 1 – 8.

[119] Ibid 17 – 20.

[120] Ibid 28 – 29.

[121] Ibid 31 – 33.

[122] T 1 – 23, lines 5 – 7.

[123] T 1 – 21, lines 43 – 44.

[124] T 1 – 22, lines 20 – 29.

[125] T 1 – 23, lines 20 – 47.

[126] T 1 – 74, lines 11 – 13.

[127] Ibid 19 – 21.

[128] Ibid 25 – 30.

[129] Ibid 36 – 40.

[130] Ibid 43 – 44.

[131] T 1 – 80, line 4.

[132] Ibid 22 – 24.

[133] T 1 – 80, lines 25 – 27.

[134] Ibid 32 – 36.

[135] T 2 – 7, line 18; T 2 – 13, line 38.

[136] T 2 – 7; line 18.

[137] T 2 – 13, line 41.

[138] T 2 – 9, line 43.

[139] Decision of the Workers Compensation Regulator, 14 May 2020, 8 – 9.

[140] T 2 – 14, lines 12 – 14.

[141] T 2 – 16, lines 23 – 29; Decision of the Workers Compensation Regulator, 14 May 2020, 9.

[142] Decision of the Workers Compensation Regulator, 14 May 2020, 9.

[143] Ibid.

[144] Exhibit 1, 44.

[145] Ibid 18 – 48.

[146] Exhibit 2, 75.

[147] Ibid.

[148] Ibid 78.

[149] T 1 – 103, lines 18 – 25.

[150] Exhibit 2, 108 – 109.

[151] Ibid 109.

[152] Ibid.

[153] T 1 – 11, lines 36 – 41.

[154] T 1 – 102, lines 29 – 31.

[155] T 1 – 86, 87, lines 29 – 35.

[156] T 2 – 34, lines 13 – 14.

[157] At which time, Aleesha reported "stress" because of her husband’s impending redundancy.

[158] T 2 – 41, lines 23 – 25.

[159] T 2 – 43, lines 21 – 28.

[160] T 1 – 97, lines 3 – 6.

[161] Exhibit 2, 17.

[162] Ibid 70.

[163] Ibid 71.

[164] T 2 – 53, lines 11 – 16.

[165] T 1 – 96, lines 20 – 33.

[166] Exhibit 2, 44; T 2 – 53, lines 31 – 32.

[167] T 2 – 53, lines 20 – 25.

[168] Ibid 13.

[169] [2008] ICQ 42, 9.

[170] T 1 – 106, lines 1 – 8.

[171] T 1 – 100, lines 28 – 30.

[172] Appellant’s Closing Submissions, 17 June 2021, 7.

[173] T 1 – 73, lines 8 – 11.

[174] T 1 – 16; T 1 – 83.

[175] Exhibit 2, 21 – 23.

[176] Ibid 5 – 8, 12.

[177] Citalopram.

[178] T 1 – 93, lines 20 – 27.

[179] T 2 – 53, lines 25 – 29.

[180] T 2 – 54, lines 17 – 18.

[181] T 2 – 49, lines 1 – 44.

[182] Appellant’s Closing Submissions, 17 June 2021, 8.

[183] Exhibit 2, 13.

[184] T 1 – 12, lines 9 – 21.

[185] T 2 – 49, lines 1 – 44.

[186] T 1 – 93, lines 20 – 27.

[187] T 1 – 106, lines 1 –8.

[188] T 2 – 53, line 13.

[189] T 1 – 96, lines 39 – 42.

[190] T 1 – 94, lines 2 – 3.

[191] Ibid 6

[192] Ibid 10 – 11.

[193] T 1 – 103, lines 18 – 25.

[194] T 2 – 43, lines 21 – 28.

[195] T 2 – 43, lines 35 – 46.

[196] Exhibit 2, 17.

[197] Decision of the Workers Compensation Regulator, 14 May 2020, 11.

[198] T 1 – 21, lines 1 – 8.

[199] Exhibit 1, 44.

[200] Decision of the Workers Compensation Regulator, 14 May 2020, 11.

[201] Exhibit 2, 19.

[202] T 1 – 75, lines 15 – 28.

[203] Exhibit 2, 18; Clinical note, 10 August 2017.

[204] T 1 – 100, lines 46 – 47.

[205] T 1 – 87, lines 5 – 45.

[206] Exhibit 2, 43; Letter from Dr Steele to Dr Gitsham, 11 August 2017.

[207] Ibid 19.

[208] Ibid 45

[209] Ibid 47.

[210] T 1 – 91, lines 33 – 38.

[211] T 2 – 44, lines 11 – 17.

[212] T 1 – 107, lines 27 – 29.

[213] T 1 – 97, lines 3 – 6.

[214] T 1 – 91, line 47.

[215] Respondent’s Closing Submissions, 5 July 2021, 4 [28].

[216] T 1 – 96, line 37 – T 1 – 97, line 6.

[217] T 2 – 53, lines 34 – 38.

[218] Mention Transcript 1 – 3, lines 5 – 21.

[219] T 1 – 2, lines 35 – 38.

[220] Respondent’s Closing Submissions, 5 July 2021, 1 [8].

[221] Ibid 1 [7].

[222] [2014] ICQ 009, [47].

[223] [2016] ICQ 10, [57].

[224] [2020] QIRC 097, [25] – [28].

[225] Sabo v Q–COMP [2010] ICQ 47, [21].

[226] Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99, [65] citing Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42, 47 – 48.

[227] Delaney v Q–COMP Review Unit (2005) 178 QGIG 197, 197.

[228] Q–COMP v Hohn (2008) 187 QGIG 139, 146.

[229] WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94.

[230] Prizeman v Q–COMP (2005) 180 QGIG 481, 481.

[231] Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028, [41].

[232] Ibid [42].

[233] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027, [15].

[234] [2020] ICQ 2, 18 [86].

[235] [2017] QIRC 072, 5 [8].

[236] [2017] QIRC 88, [60].

[237] Exhibit 1, 17 – 48.

[238] T 2 – 14, line 30.

[239] [2021] ICQ 13.

[240] [2021] ICQ 13.

Close

Editorial Notes

  • Published Case Name:

    Skinner v Workers' Compensation Regulator

  • Shortened Case Name:

    Skinner v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 19

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    28 Jan 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allwood v Workers' Compensation Regulator [2017] QIRC 88
2 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Coles Supermarkets Australia Pty Ltd v Workers' Compensation Regulator [2015] QIRC 11
2 citations
Jump To
Cite 1 - [2015] QIRC 11
Cite 2 - [2015] QIRC 11
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
2 citations
Jump To
Cite 1 - (1998) 71 SASR 42
Cite 2 - (1998) 71 SASR 42
Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99
2 citations
Jump To
Cite 1 - [2015] QIRC 99
Cite 2 - [2015] QIRC 99
Linke v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 181
2 citations
Jump To
Cite 1 - [2014] QIRC 181
Cite 2 - [2014] QIRC 181
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
2 citations
Jump To
Cite 1 - (1995) 65 SASR 16
Cite 2 - (1995) 65 SASR 16
Morrison v Workers' Compensation Regulator [2016] QIRC 65
3 citations
Jump To
Cite 1 - [2016] QIRC 65
Cite 2 - [2016] QIRC 65
Cite 3 - [2016] QIRC 65
Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR NSW 119
2 citations
Jump To
Cite 1 - (1941) 41 SR NSW 119
Cite 2 - (1941) 41 SR NSW 119
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Q-COMP v Foote (No 2) [2008] ICQ 42
2 citations
Jump To
Cite 1 - [2008] ICQ 42
Cite 2 - [2008] ICQ 42
Q-Comp v Hohn (2008) 187 QGIG 139
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Re: National Retail Association Limited, Union of Employers [2015] QIRC 27
2 citations
Jump To
Cite 1 - [2015] QIRC 27
Cite 2 - [2015] QIRC 27
Read v Workers' Compensation Regulator [2017] QIRC 72
2 citations
Jump To
Cite 1 - [2017] QIRC 72
Cite 2 - [2017] QIRC 72
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
2 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Sabo v Q-COMP [2010] ICQ 47
2 citations
Jump To
Cite 1 - [2010] ICQ 47
Cite 2 - [2010] ICQ 47
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
2 citations
Jump To
Cite 1 - (2000) 49 NSWLR 262
Cite 2 - (2000) 49 NSWLR 262
Sotiroulis v Kosac (1978) 80 LSJS 112
2 citations
Jump To
Cite 1 - (1978) 80 LSJS 112
Cite 2 - (1978) 80 LSJS 112
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
Jump To
Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Waugh v Workers' Compensation Regulator [2015] ICQ 28
3 citations
Jump To
Cite 1 - [2015] ICQ 28
Cite 2 - [2015] ICQ 28
Cite 3 - [2015] ICQ 28
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Workers' Compensation Regulator v Langerak [2020] ICQ 2
2 citations
Jump To
Cite 1 - [2020] ICQ 2
Cite 2 - [2020] ICQ 2
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
3 citations
Jump To
Cite 1 - [2021] ICQ 13
Cite 2 - [2021] ICQ 13
Cite 3 - [2021] ICQ 13

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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