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Carr v Workers' Compensation Regulator[2022] QIRC 59

Carr v Workers' Compensation Regulator[2022] QIRC 59

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Carr v Workers' Compensation Regulator [2022] QIRC 059

PARTIES:

Carr, Donna Noreen

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2021/4

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

1 March 2022

HEARING DATES:

6 October 2021 and 7 October 2021

DATES OF WRITTEN CLOSING SUBMISSIONS:

MEMBER:

HEARD AT:

Appellant's submissions, 10 November 2021

Respondent's submissions, 14 December 2021

The Appellant did not file any reply submissions

McLennan IC

Brisbane

ORDERS:

  1. The appeal is allowed.
  1. The decision of the Respondent of 4 December 2020, as set out in the correspondence dated 18 December 2020, is set aside.
  1. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.
  1. 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 the date a psychological / psychiatric injury was sustained – whether the psychological /psychiatric injury arose out of or in the course of employment – whether employment was the major significant contributing factor to psychological / psychiatric injury – whether psychological / psychiatric injury arose out of, or in the course of reasonable management action taken in a reasonable way

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 545

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, 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

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

Prizeman v Q–COMP (2005) 180 QGIG 481

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

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

Tuesley v Workers' Compensation Regulator [2021] QIRC 071

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 C D Watters of counsel instructed by My Work Rights Industrial Advocates for the Appellant.

Ms L Willson of counsel, directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Ms Donna Carr got her start in an entry-level administration position with Road Freight Services[1] at age 23.
  1. [2]
    Over the next 18 years, Ms Carr progressed to a highly significant position with extensive responsibilities within the company.  The scope of her duties as "office manager"[2] "in charge of finances, admin teams, so forth"[3] included: supervising the administration staff, liaising with the accountant, liaising with the bank, ordering office supplies, reconciliation, setting up the Bundy Clock system with regards to payroll,[4] accounts receivable, accounts payable, superannuation, taxation, operations accounts and funds controller, trusts and properties.[5]
  1. [3]
    Against the backdrop of several challenges and changes at work, Ms Carr sustained a psychological injury in 2019.
  1. [4]
    Ms Carr lives locally on the Gold Coast with her husband and two children.

Claim details

  1. [5]
    Ms Carr lodged an application for compensation (the application) with WorkCover Queensland (WorkCover) on 12 December 2019.[6] 
  1. [6]
    Her claim was in respect of having sustained a psychological injury described as "stress psychological"[7] to which she succumbed on 30 July 2019 due to "cumulative stress".[8] 
  1. [7]
    WorkCover rejected Ms Carr's application, concluding that her injury resulted from reasonable management action taken in a reasonable way.  This had the effect of excluding Ms Carr's application pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').[9]
  1. [8]
    Ms Carr applied to the Workers' Compensation Regulator ('the Regulator') to review that decision on 9 July 2020. 
  1. [9]
    The Regulator confirmed WorkCover's decision in correspondence dated 18 December 2020.
  1. [10]
    Ms Carr subsequently filed this appeal against the Regulator's decision on 15 January 2021.

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

  1. [11]
    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. [12]
    An injury arises out of employment where there is a causal connection between the employment and the injury.[10]
  1. [13]
    Additionally, the employment must be the major significant contributing factor in the case of a psychiatric or psychological disorder. 
  1. [14]
    An appeal such as this is a hearing de novo.[11]  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.[12]

What are the questions to be determined?

  1. [15]
    There is no dispute between the parties that:
  • Ms Carr was a worker within the meaning of s 11 of the Act, during the relevant period;[13] and
  • Ms Carr sustained a personal injury in the form of a psychological condition,[14] namely anxiety and depression.[15] 
  1. [16]
    The questions to be determined are:
  • the date of injury;
  • whether the personal injury arose out of, or in the course of, Ms Carr's employment;
  • if so, whether Ms Carr's employment was the major significant contributing factor to her psychiatric injury; and
  • if so, whether Ms Carr's psychological injury 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. [17]
    For the reasons that follow, I find that:
  • the date of Ms Carr's psychological injury was 30 July 2019;
  • Ms Carr's psychological injury did arise out of, or in the course of, her employment;
  • Ms Carr's employment was the major significant contributing factor to her psychological injury; and
  • Ms Carr's psychological 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. [18]
    Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only).
  1. [19]
    The Appellant's written closing submissions were filed on 10 November 2021.
  1. [20]
    The Respondent's written closing submissions were filed on 14 December 2021.
  1. [21]
    The Appellant did not file any written closing submissions in reply.
  1. [22]
    The evidence of the six witnesses and 17 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. [23]
    The witnesses for the Appellant's case were:
  • Ms Donna Carr, the Appellant herself;
  • Ms Tracey Taylor, the Appellant's former work colleague;
  • Ms Margaret Powell, the Appellant's former work colleague; and
  • Dr John Chalk, a Consultant Psychiatrist.
  1. [24]
    The witnesses for the Respondent's case were:
  • Mrs Melanie Cosgrove, Business Manager, SRV Management Pty Ltd[16] (formerly Fleet and Compliance Manager);[17] and
  • Mr Errol Cosgrove, Company Director,[18] SRV Management Pty Ltd.[19]

What date was Ms Carr's psychological injury sustained?

  1. [25]
    It is not disputed that Ms Carr has a psychological injury, namely anxiety and depression.[20] 
  1. [26]
    Specifically, Dr John Chalk's report dated 29 February 2020 assessed Ms Carr's psychological condition to be "an adjustment disorder with depressed and anxious mood."[21]
  1. [27]
    The Appellant's position was that "the date of injury may have been as early as 30 July 2019 and / or 5 August 2019",[22] though the "injury may have occurred as late as 10 October 2019".[23]  Ms Carr's injury was said to have occurred over time in the period between 30 July to 10 October 2019.[24]
  1. [28]
    The Respondent's position is that the date of injury is 30 July 2019.[25]
  1. [29]
    In determining the question of the date of injury, the following evidence is relevant:

GP consultation – 30 July 2019

  1. [30]
    On 30 July 2019, Ms Carr consulted her GP, Dr Peter Gold.[26] 
  1. [31]
    The GP records of that date described the reason for Ms Carr's visit as "Mental health consult".  The notes indicated Ms Carr was "struggling with MH" and had described "unbearable" work pressures and dynamics.  She was provided with a medical certificate.
  1. [32]
    The Appellant's Statement of Facts and Contentions referred to the GP consultation in these terms:

…she was not coping with her current employment situation and the effect it is having on my and all parts of my life she had a breakdown.[27]

GP consultation – 5 August 2019

  1. [33]
    On 5 August 2019, Ms Carr again consulted her GP, Dr Peter Gold.[28]
  1. [34]
    The GP records of that date described the reason for Ms Carr's visit as "Mental health care plan".  The notes stated the diagnosis of Ms Carr's psychological condition as "Anxiety / Depression."  Ms Carr's self-reported symptoms were assessed as "moderately severe depression" and "severe anxiety."
  1. [35]
    At that time, Ms Carr was referred to Dr Jan Murgatroyd, Psychologist.

Workers' compensation medical certificate

  1. [36]
    On 12 December 2019, a Queensland workers' compensation medical certificate was issued.[29] That document certified that Ms Carr was first seen for the injury diagnosed as "work related stress disorder leading to anxiety / depression" on 30 July 2019. It further indicated that the "worker stated date of injury" to be 18 July 2019.