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Prior v Workers' Compensation Regulator[2023] QIRC 104

Prior v Workers' Compensation Regulator[2023] QIRC 104

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Prior v Workers' Compensation Regulator [2023] QIRC 104

PARTIES:

Prior, Claire

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2021/187

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

5 April 2023

HEARING DATE:

16 December 2022

DATES OF WRITTEN SUBMISSIONS:

Appellant's submissions, 31 January 2023

Respondent's submissions, 14 February 2023

Appellant's reply submissions, 28 February 2023

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. The Appellant has sustained an aggravation of a personal injury.
  1. The Appellant sustained the aggravation on 28 November 2019.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where appellant was employed as a Nurse Practitioner – where appellant sustained a psychiatric condition – whether appellant suffered an aggravation of a personal injury – consideration of the date any such aggravation occurred

LEGISLATION:

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

CASES:

Carman v Q-COMP [2007] ICQ 43

Church v Workers' Compensation Regulator [2015] ICQ 031

CS Energy Limited v Q-Comp [2008] QIC 57

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Karipa v Q-COMP [2013] QIRC 161

Omanski v Q-COMP [2013] ICQ 7

Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 033

State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447

Workers' Compensation Regulator v Guymer [2017] QIRC 080

APPEARANCES:

Ms C Prior, the Appellant in person.

Mr P B O'Neill of counsel, directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Ms Claire Prior and her family moved from regional Victoria to Toowoomba in June 2018, so she could take up a position of Nurse Practitioner at the University of Southern Queensland (USQ).
  1. [2]
    For most of her time there, Ms Prior worked from the medical centre at USQ's Toowoomba campus. 
  1. [3]
    The medical centre employed three General Practitioners, together with other clinical and administrative staff.  Clients were mainly staff and students of the university.
  1. [4]
    While it was different to Ms Prior's previous work experience in a regional hospital and in private general practices, "all went smoothly"[1] apparently in the first six months of the probation period. 
  1. [5]
    The Prior family sold their residence in Victoria and purchased a home in Toowoomba in April 2019. 
  1. [6]
    But by that time, things had started to sour.
  1. [7]
    Ms Prior was teary during a feedback session and had a difficult meeting with her manager, Ms Georgina Hawker.[2]  She sought counselling support through EAP[3] with Mr Peter Collins, Psychologist.
  1. [8]
    Concerns about Ms Prior's clinical practice were raised with Dr Christie White, Director, Student Success and Wellbeing Department.
  1. [9]
    Ms Prior also made several complaints about Ms Hawker.
  1. [10]
    Ms Prior was informed that "USQ had become aware of a number of concerns raised in relation to her conduct, which if established, could amount to misconduct, serious misconduct or a breach of health protocols, legislation, or regulations."[4] 
  1. [11]
    Ms Prior was placed on special leave whilst dual investigations were conducted by an external investigator into allegations made against her, and by her against Ms Hawker. 
  1. [12]
    At the end of August 2019, Ms Prior was advised of the outcome of her complaint against Ms Hawker.
  1. [13]
    About three weeks later, Ms Prior was advised of the outcome of the investigation into allegations against her.
  1. [14]
    Upon expiry of Ms Prior's period of special leave on 26 September 2019, she returned to work, only to be advised by Dr White and Ms Shaunaugh Brady[5] that "it would be better for her to join her family on holidays interstate and to return for a fresh start in October 2019."[6]  She did so, resuming at the medical centre a week and a half later.
  1. [15]
    On 8 October 2019, Ms Prior consulted Dr Mark Bennett.[7] Ms Prior told him that a breach had been recorded and that she wanted it removed.  Dr Bennett noted she was "struggling" with an "Adjustment Disorder".[8]
  1. [16]
    Ms Prior met with USQ Human Resources personnel and senior managers to discuss her return to work plan and the implementation of a performance management plan. 
  1. [17]
    The following day, Ms Prior reported a severe panic attack, which Dr Bennett noted to be "Anxiety".[9]
  1. [18]
    Ms Prior commenced negotiations with USQ about a potential separation package in mid-October 2019 – but ultimately rejected the settlement offer made to her.
  1. [19]
    After taking the step of informing Ms Tessa McCredie that she was struggling with her mental health, Ms Prior was instructed to "keep her door open as a welfare issue."[10]
  1. [20]
    On 24 October 2019, Ms Prior made an application to WorkCover, seeking compensation for a work-related psychological injury (the first workers' compensation claim).[11]
  1. [21]
    A few days later, Ms Prior and her health team colleagues were notified by email that Ms Hawker was going on leave and that Ms Chelsea Koelmeyer would be acting manager.  Ms Prior took a longer lunch break than normal "because of her state of distress".[12]
  1. [22]
    The following day, Ms Koelmeyer informed Ms Prior that lunch is strictly 48 minutes and that she requires notice should extra time be required.  Ms Prior left work early and consulted Dr Felicity Constable,[13] reporting "suicidal thoughts a couple of weeks ago."[14]
  1. [23]
    Ms Prior met with the Rehabilitation Officer about the proposed Suitable Duties Plan and her fitness for work.  She became distressed in that meeting and left work to see Dr Bennett.
  1. [24]
    Over the coming days, Ms Prior consulted Dr Bennett several times.  Ms Prior was on paid special leave from 4 - 13 November 2019 inclusive.
  1. [25]
    On 14 November 2019, Ms Prior, Ms Hawker and the Rehabilitation Coordinator[15] met to implement a Suitable Duties Plan for her return to work.
  1. [26]
    A week later, Ms Prior told Mr Collins that a colleague had made a complaint about her and she was back on sick leave. 
  1. [27]
    Ms Prior informed Dr Bennett on 10 December 2019 that her workers' compensation claim had been rejected. 
  1. [28]
    Two days later, Ms Prior and USQ executed a deed of settlement and her employment ended on 13 December 2019.
  1. [29]
    Early in the new year,[16] Ms Prior made an income protection claim.
  1. [30]
    In February 2020, Dr Bennett referred Ms Prior to see Ms Sharon Foreman, Psychologist.
  1. [31]
    In a consultation with Dr Bennett on 24 June 2020, Ms Prior asked if there was an "exacerbation in October 2019"[17] - the first time the matter arose.
  1. [32]
    A fortnight later,[18] Ms Prior made another application for workers' compensation (the second workers' compensation claim).  That is the subject of this appeal.

Claim details

  1. [33]
    Ms Prior lodged the second claim with WorkCover on 7 July 2020[19] - this time, for an "aggravation" of her psychological injury. 
  1. [34]
    Dr Mark Crowley issued a Certificate of Capacity in support.  After his examination of Ms Prior on 16 July 2020, Dr Crowley provided the diagnosis of "Exacerbation of Adjustment Disorder with Anxiety and Depression".[20]  Dr Crowley certified that Ms Prior had "no capacity for employment from 16/07/2020 to 13/08/2020." 
  1. [35]
    Dr Bennett's earlier diagnosis of Ms Prior's psychological injury as "Adjustment Disorder with associated Anxiety" was noted on the various Queensland Workers' Compensation Work Capacity Certificates, issued between 24 October 2019 and 13 January 2020.[21]
  1. [36]
    In each of those Work Capacity Certificates,[22] Dr Bennett recorded the "Patient's stated mechanism of injury" to be "Over time – workplace stressors". 
  1. [37]
    Dr Bennett went on to describe that in detail in various certificates as:

Has had time off work workplace bullying – now returned to work but feels management has made it difficult to continue normal work and have not supplied RTW services previously offered.

Threats of possible termination.[23]

…

Has had time off work investigating procedural issues – now returned to work but feels management has made it difficult to continue normal work and have not supplied RTW services previously offered.[24]

  1. [38]
    In each of those Work Capacity Certificates,[25] Dr Bennett noted "Pre-existing factors or condition aggravated" to be:

N/A[26]

  1. [39]
    WorkCover Queensland rejected Ms Prior's second application on 22 July 2020.[27]
  1. [40]
    Ms Prior applied to the Workers' Compensation Regulator ('the Regulator') to review that decision on 6 October 2020.[28] 
  1. [41]
    The Regulator provided reasons for the decision dated 5 February 2021 setting aside WorkCover's rejection of Ms Prior's claim as being out of time.
  1. [42]
    On 11 May 2021, WorkCover provided further reasons for the decision in which it rejected the application, relying on 'reasonable management action'.
  1. [43]
    Ms Prior lodged a further review application on 30 July 2021.
  1. [44]
    The Regulator confirmed WorkCover's decision to reject Ms Prior's "aggravation" claim on 26 November 2021, concluding "that the injury you sustained is one that arose out of reasonable management action taken in a reasonable way"[29] 
  1. [45]
    This had the effect of excluding Ms Prior's application pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').[30]
  1. [46]
    Ms Prior subsequently filed this appeal against the Regulator's decision on 3 December 2021.

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

  1. [47]
    An appeal such as this is a hearing de novo.[31] 
  1. [48]
    Ms Prior 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:

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.[32]

Meaning of "injury"

  1. [49]
    There is a dispute between the parties as to the relevant date of injury. This is significant because amendment to the existing s 32 of the Act took effect on 30 October 2019.  That was to be replaced by s 34 of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld). 
  1. [50]
    If Ms Prior sustained an injury before 30 October 2019, the relevant iteration of s 32 of the Act is (emphasis added):
  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. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. (3)
    Injury includes the following—
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—

(i) a personal injury other than a psychiatric or psychological disorder;

(ii) a disease;

(iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

  1. (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. (c)
    loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. (d)
    death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  1. (e)
    death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. (f)
    death from an aggravation mentioned in paragraph (b), if the employment is a 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. [51]
    If Ms Prior sustained an injury on or after 30 October 2019, the relevant iteration of s 32 of the Act is (emphasis added):
  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  1. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. (3)
    Injury includes the following—
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—

(i) a personal injury;

(ii) a disease;

(iii) a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

  1. (c)
    loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. (d)
    death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  1. (e)
    death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. (f)
    death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
  1. (4)
    For subsection (3)(b), 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. [52]
    A psychiatric or psychological disorder sustained prior to 30 October 2019 is an injury if it arose out of or in the course of employment and the employment is the major significant contributing factor to the injury. Whereas an injury sustained on or from 30 October 2019 is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

What does "aggravation" mean?

  1. [53]
    If Ms Prior sustained an injury before 30 October 2019, s 32(3)(ba) of the relevant iteration of the Act provides that an "injury" includes:

… 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. [54]
    Section 32(4) of that iteration of the Act clarifies that, "an aggravation mentioned in (subsection (3)(ba)) is an injury only to the extent of the effects of the aggravation."
  1. [55]
    If Ms Prior sustained an injury on or from 30 October 2019, s 32(3)(b) of the relevant iteration of the Act provides that an "injury" includes:

an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation-

  1. (i)
    a personal injury
  2. (ii)
    a disease;
  3. (iii)
    a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
  1. [56]
    Section 32(4) of that iteration of the Act clarifies that, "an aggravation mentioned in (subsection (3)(b)) is an injury only to the extent of the effects of the aggravation.
  1. [57]
    Schedule 6 of both iterations of the Act provides that "aggravation includes acceleration".
  1. [58]
    Although there are numerous decisions of this Commission that consider the meaning of "aggravation" as it pertains to a physical injury, there are few decisions that consider the meaning of aggravation as it pertains to a psychiatric or psychological disorder. The decisions pertaining to physical injury nevertheless provide helpful guidance and many are referred to in Ms Prior's submissions.
  1. [59]
    Ms Prior also refers to the "Qld Worksafe glossary" which provides, "An aggravation is when a pre-existing condition is made worse by employment" and the "WorkSafe Victoria claims manual" which groups aggravation, acceleration, exacerbation and recurrence of any pre-existing disease. Ms Prior references the Oxford English Dictionary which defines "aggravation" as "the state of becoming worse or more serious; exacerbation."
  1. [60]
    The Respondent does not outline its position with respect to the meaning of "aggravation" however I note the repeated reference to "exacerbation or aggravation of her pre-existing psychological injury" within the Respondent's submissions.
  1. [61]
    In Gillan v Workers' Compensation Regulator,[33] Merrell DP considered whether the Appellant suffered an aggravation of a personal injury within the meaning of s 32(3)(ba) of the Act. His Honour referred to caselaw pertaining to an aggravation of a physical injury, providing (emphasis added, some citations omitted):
  1. [89]
    A worker suffers an injury if he or she suffered 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.[34] It has been held, albeit in relation to a physical injury, that for an aggravation to occur, it is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence. There is no requirement for a claimant to show that the aggravation is a significant aggravation.
  1. [90]
    There is no distinction between an 'exacerbation' and 'aggravation' of an injury.[35]
  1. [62]
    In Karipa v Q Comp,[36] O'Connor DP (as he then was) summarised the relevant caselaw with respect to the meaning of "aggravation", albeit as it pertained to physical injuries (emphasis added, citations omitted):
  1. [37]
    In Ward v Q-COMP his Honour President Hall wrote:

"The statutory definition of 'injury' at s. 32 of the Workers' Compensation and Rehabilitation Act 2003, includes the aggravation of an injury 'which arises out of or in the course of the employment'. It has long been settled that the activation of pain is equated with aggravation of an underlying disease i.e. that it is sufficient that an asymptomatic underlying degenerative disease becomes painful, even if there is no change to the underlying pathology, see Pleming v Workers' Compensation Board of Queensland at 1182 per de Jersey P, and WorkCover Queensland v BHP (Qld) Workers Compensation Unit at 143 per Hall P. If indeed, Ms Ward's degenerative back and/or her degenerative right knee had become symptomatic, i.e. painful, whilst she was doing that which she was employed to do, I should have thought that the only sustainable conclusion was that she had suffered an injury in the course of her employment."

…

  1. [40]
    In Fielder v WorkCover Queensland his Honour President Hall wrote:

"The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoe laces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of the pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker's employment had been "a significant contributing factor to the aggravation". On the state of the evidence any other conclusion would be speculation."

  1. [41]
    In Carman v Q-COMP his Honour President Hall wrote:

"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of "aggravation" was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit., establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."

  1. [42]
    I do not accept the submission that there is a distinction between an "exacerbation" and an "aggravation". In Omanski v Q-COMP his Honour President Hall accepted that the definition of "aggravation" in sch. 6 to the Act is inclusive, and that "aggravate" can carry the meaning "exacerbate". In forming that view, his Honour referred to the decision in Commonwealth v Beattie and, in particular, to the reasoning of Evatt and Sheppard JJ who found that "a synonym for 'exacerbate' is to aggravate".
  1. [43]
    In JBS Australia Pty Ltd v Q-COMP, an aggravation, in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state, was held by his Honour President Hall to be a compensable injury. His Honour wrote:

"The view attributed to the Court by the Commission in Scott Newton AND Q-COMP and relied upon by JBS Australia Pty Ltd, is quite another matter. At paragraph [60] and [61] the Commission asserted:

'[60] There is another matter that also needs to be considered, that is, that there are two types of aggravation to a degenerative condition. In Heald v Q-COMP Hall P said:

"A degenerative condition may be aggravated in the sense that it may be made worse, i.e. after the aggravation the degenerative disorder is worse that it was before. But there can also be aggravation in the sense of an increase of symptoms associated with a degenerative condition which, after the cessation of the symptoms, returns to its pre-aggravation state.".

[61] The second type of aggravation, where it arises in an employment context, is one that does not attract workers' compensation benefits.'.

On the contrary, in Heald v Q-COMP, ibid, at 771, the Court accepted that aggravation in the second sense was compensable."

  1. [63]
    In CS Energy Limited v Q-Comp,[37] President Hall held (emphasis added):

On the medical evidence, the Industrial Magistrate's analysis that on or about 18 July 2006, Mr Gupta suffered an aggravation of an underlying condition seems to me to be entirely correct. The witnesses were Dr Vanessa Johnson (the treating psychiatrist) and a Ms Lynda Troy (a psychologist from whom Workcover had sought an opinion). The experts were ad idem that there were some symptoms before the meeting of 18 July 2006 and as far back as October of 2005. However, to quote Dr Johnson, there was a "marked deterioration in Mr Gupta's mental state following his meeting."

  1. [64]
    I will take into consideration the authorities referred to above in determining whether Ms Prior has suffered an aggravation of a psychiatric / psychological disorder or personal injury.

Preliminary Hearing - Questions to be determined

  1. [65]
    This preliminary Hearing was only to determine the questions of:
  1. Did Ms Prior sustain a personal injury or aggravation? and
  1. If so, what date did that occur?[38]
  1. [66]
    There is no dispute between the parties that:
  • Ms Prior was a worker for the purposes of s 11 of the Act;[39] and
  • Ms Prior has sustained a psychiatric injury.[40]

Summary of Findings

  1. [67]
    In my view:
  • There was an aggravation of Ms Prior's personal injury; and
  • The date the aggravation occurred was 28 November 2019.
  1. [68]
    My reasons follow.

Evidence and submissions

  1. [69]
    Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only).
  1. [70]
    The Appellant's written closing submissions were filed on 31 January 2023.
  1. [71]
    The Respondent's written closing submissions were filed on 14 February 2023.
  1. [72]
    The Appellant's written submissions in reply were filed on 28 February 2023.
  1. [73]
    The evidence of the witnesses and nine 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. [74]
    The witnesses for the Appellant's case were:
  • Ms Claire Prior, the Appellant herself;
  • Dr Mark Bennett, formerly the Appellant's General Practitioner; and
  • Mr Peter Collins, formerly the Appellant's EAP Counsellor.
  1. [75]
    The Respondent called no witnesses.

Did Ms Prior sustain a personal injury or aggravation?

If so, what date did that occur?

  1. [76]
    It is not disputed that Ms Prior sustained one psychiatric injury, in the relevant period.[41] 
  1. [77]
    However, that does not settle the question of whether or not there was an "aggravation" of that condition.
  1. [78]
    Neither is it disputed that Ms Prior knew that events occurring after July 2019 could not be taken into account for her first workers' compensation claim,[42] when she made the subsequent claim for 'aggravation' of personal injury on 7 July 2020[43] (subject of this appeal).

Appellant's position

  1. [79]
    Ms Prior stated she had an adjustment disorder that "got worse" after she returned from a long absence from work whilst being investigated.[44]
  1. [80]
    Ms Prior submitted that the aggravation was caused by the alleged stressors, said to have occurred after September 2019.[45]  She explained (emphasis added):

What I was not expecting on my return to work was an exacerbation of the symptoms of depression and anxiety, further workplace stressors involving the same supervisor, ostracism, and eventual decompensation to the point of not wanting or being capable of working at all on 28 November 2019.[46]

  1. [81]
    At the Hearing, Ms Prior contended that "the date of the exacerbation should be the date I became the most worse and incapable of working at all, which was the 28th of November 2019."[47]

Respondent's position

  1. [82]
    The Respondent contended that Ms Prior did not sustain an aggravation or exacerbation of a pre-existing psychiatric injury.[48]
  1. [83]
    The Respondent stated the medical evidence supports that Ms Prior "has only sustained one psychiatric injury which was subsisting and ongoing from about July 2019 and was being treated by Dr Bennett and Dr Alempijevic up until February 2020."[49]
  1. [84]
    The Respondent noted that Ms Prior "has relied upon the work capacity certificate provided by Dr Bennett on 24 October 2019 in support of both the original psychiatric injury…and for the alleged aggravation injury."[50]
  1. [85]
    The Respondent asserted (emphasis added) that given the:

…psychiatric injury the subject of claim number S 19FB646754 was found to arise out of, or in the course of reasonable management action taken in connection with the appellant's employment and the appellant has not appealed the decision of the respondent dated 12 June 2020, the appellant is not entitled to any further compensation claim in respect of that injury.

If the Commission is against that submission and finds that the appellant has sustained an aggravation or exacerbation of a pre-existing psychiatric injury from events occurring in October 2019, the respondent contends that the date of injury on the basis of the medical evidence can only be 24 October 2019 when Dr Bennett issues the first work capacity certificate and assesses the appellant as having sustained a work-related psychiatric injury.

The respondent contends that events occurring after 24 October 2019 could not have contributed to the aggravation of the appellant's pre-existing injury.[51]

Medical opinions

  1. [86]
    The authorities confirm that whether there is an injury, the nature of the injury and the timing of the injury involve mixed questions of fact and law.[52]
  1. [87]
    The Respondent has referred to the Commission's decisions[53] in Workers' Compensation Regulator v Guymer[54] and Shaw v Workers' Compensation Regulator.[55]  I have considered those but do not agree they are analogous to Ms Prior's appeal.  In the two former cases cited, there was a lack of medical evidence in support of the Appellants' claims of aggravation.

Mr Collins

  1. [88]
    Mr Collins said that his role as an EAP psychologist was more of a counselling role, rather than a clinical approach to treatment.[56]
  1. [89]
    In terms of the questions to be decided at the preliminary Hearing, Mr Collins said his records provide a timeline of Ms Prior's reports but he is not in a position to answer these questions.[57]
  1. [90]
    Mr Collins confirmed that he did not identify or note any specific impasse or event where a clinically significant change occurred in Ms Prior's diagnosis.[58]
  1. [91]
    Mr Collins strongly agreed that the person best placed to provide a clinical opinion and conclusion is Dr Bennett, as Ms Prior's treating GP and who saw her throughout the relevant period.[59]

Dr Crowley

  1. [92]
    Dr Crowley agreed that Dr Bennett is best placed to provide a clinical diagnosis and opinion regarding Ms Prior's psychological injury, as he was her primary treating doctor at that time.[60]
  1. [93]
    Having reviewed the medical records provided, Dr Crowley deferred to the opinion of Dr Bennett regarding Ms Prior's diagnosis.[61]
  1. [94]
    With respect to whether and when he considered Ms Prior to have suffered an exacerbation of the pre-existing Adjustment Disorder, Dr Crowley opined:

On her return to the workplace in September / October 2019.  She told me that her return to work at that time led to an increase in her symptoms.  As noted in my records, I documented that her issues began in April 2019 and were exacerbated by her return to work…Dr Bennett makes mention of an increase in panic at that time in October…[62]

…

I relied upon the history provided by Ms Prior regarding an increase in her symptoms on returning to the workplace.  Based on my clinical judgement, I documented this as an exacerbation of adjustment disorder on the certificate.[63]

…

…I remain of the opinion that she suffered an exacerbation of this disorder on her return to the workplace in September / October 2019.  I believe the exacerbation is not related to any pre-existing disorder from prior to her health issues with this workplace.[64]

Dr Bennett

  1. [95]
    It was not disputed that Dr Bennett is best placed to provide a medical opinion about whether Ms Prior suffered an aggravation or exacerbation of a pre-existing condition.[65]
  1. [96]
    Dr Bennett confirmed that 24 September 2019 was the first time he had recorded a diagnosis of Ms Prior's psychiatric condition, being an "Adjustment Disorder".[66]
  1. [97]
    Dr Bennett confirmed that Ms Prior first reported experiencing a panic attack in the 11 October 2019 consultation.  The reason for that visit was recorded as "Anxiety" and an anti-anxiety medication was prescribed.  Dr Bennett noted that the anxiety symptoms were part of and reflected the Adjustment Disorder that Ms Prior was suffering from.[67]
  1. [98]
    The consultation on 24 October 2019 was the first time Dr Bennett and Ms Prior discussed lodging a workers' compensation claim.  The work capacity certificate completed by Dr Bennett that day included events since Ms Prior returned to work.  Dr Bennett confirmed that the section of the certificate that referred to pre-existing factors or conditions aggravated was left blank.[68]  Dr Bennett noted that Ms Prior "can do the work but not in the situation"[69] and confirmed that the certified injury did not prevent a return to pre-injury duties at that time.[70]
  1. [99]
    As at 30 October 2019, Dr Bennett certified that Ms Prior's "cognition/psychological functioning now affected" and reduced her working hours and suggested that she "May need short breaks to organise thoughts."  Ms Prior's certified injury still did not prevent a return to pre-injury duties at that time.[71]
  1. [100]
    On 7 November 2019, Dr Bennett commented on the certificate that "restriction with employment capabilities  marked as being reduced  capacity pertain to interactions where bullying has occurred.  These should not be generalised as restrictions in other fields of social interaction."[72]
  1. [101]
    On 13 November 2019, Dr Bennett recorded that the workplace could not accommodate the certificate requirements.[73]
  1. [102]
    At the next consultation with Dr Bennett on 28 November 2019, his progress notes record that Ms Prior had reported that the workplace could not avoid putting her in a position of bullying in the RTW meeting 2 weeks ago.[74]  The same day, Dr Bennett certified that Ms Prior now had no functional capacity for any type of work.[75]
  1. [103]
    Dr Bennett noted that Ms Prior had sustained one psychiatric injury and that her symptoms had a "Fluctuant course depending on situations."[76]
  1. [104]
    Dr Bennett confirmed that "Ms Prior had not sustained an aggravation or exacerbation of a pre-existing psychiatric condition in or about September/October 2019."[77]
  1. [105]
    Dr Bennett told Ms Prior that she was definitely worse in November 2019 because before this she was trying to work – but he could not determine whether that is an exacerbation, or just a natural progression.[78] 
  1. [106]
    Dr Bennett elaborated that "it was the existing condition that just got worse."  He confirmed Ms Prior's existing condition was obviously worse in late November 2019.  Dr Bennett said that an adjustment disorder fluctuates, though "if they had been really nice to you, you would've been back at work, and this wouldn't have occurred."  Dr Bennett told Ms Prior "The next thing that occurred was that you got worse, and were downgraded and required a medical certificate to remove yourself from work."[79]

Consideration

  1. [107]
    With respect to the authorities on "aggravation" cited earlier in this Decision, I will conclude that an aggravation of a psychiatric / psychological disorder / personal injury has occurred if satisfied:
  • an existing psychiatric / psychological disorder was exacerbated; 
  • symptoms of the existing disorder were activated; or
  • symptoms of the existing disorder worsened – i.e., there was a marked deterioration in Ms Prior's mental state.
  1. [108]
    I accept that Ms Prior suffered an "aggravation" of her pre-existing psychiatric condition because the expression of her disorder worsened,[80] culminating in the cessation of her employment at USQ. 
  1. [109]
    The sequence of Ms Prior's worsening symptoms was that:
  • in the beginning, Ms Prior simply accessed EAP counselling sessions;
  • she was then prescribed anti-depressant medication by a GP - and referred to a psychiatrist;
  • a formal diagnosis was recorded;
  • soon after her return to work after a lengthy period, Ms Prior reported having both a severe panic attack and suicidal thoughts;
  • Ms Prior was certified as fit to work on suitable duties;
  • Dr Bennett ultimately considered that Ms Prior's condition needed time and adjustment to fix; and
  • Ms Prior's employment at USQ ended within a few days. 
  1. [110]
    While Dr Bennett recorded a diagnosis of "Adjustment Disorder with associated anxiety" in a workers' compensation medical certificate dated 24 October 2019; Ms Prior was still in paid employment then.  She also had "full capabilities to return to pre-injury duties at this time."[81] 
  1. [111]
    A week later, Ms Prior's "cognition/psychological functioning (was) now affected."  Dr Bennett's consultation notes dated 30 October 2019 stated that "It does seem that her job has been altered by University and now by her health restrictions."[82]   Mr Collins believed Ms Prior to be "capable of working and participating" on 30 October 2019.[83] 
  1. [112]
    Though by 22 November 2019, Mr Collins' evidence was that Ms Prior's "…thought was less flexible at that point in time, and (she) was focused on, you know, feeling let down and had a real sense of [indistinct] plus your supervisor".[84] 
  1. [113]
    On 28 November 2019, Dr Bennett certified that Ms Prior had "No functional capacity for any type of work" because of "increased anxiety and mood disorder" - though did not indicate 'how long' that incapacity was likely to be.  Finally, on 13 December 2019, Ms Prior ceased working for USQ entirely.  Demonstrably then, Ms Prior's condition "got worse" because whilst she could initially work with the condition, the symptoms of the existing disorder worsened such that she could do so no longer.
  1. [114]
    In response to a question as to whether Ms Prior's mental health declined over 2019, and especially towards the end of November 2019, Mr Collins said that at times she "had difficulty managing and coping."[85] 
  1. [115]
    Dr Bennett expressed the view that an adjustment disorder may fluctuate "depending on situations".[86] However, in Dr Bennett's earlier report he had noted that the patient's symptoms had not changed in frequency or severity. Dr Bennett told Ms Prior that "if they had been really nice to you, you would've been back at work and this would not have occurred."[87]
  1. [116]
    The aggravating factors had not yet occurred when Ms Prior lodged the first workers' compensation claim.  That is why she filed the subsequent claim for "aggravation", after the first claim was rejected.[88]
  1. [117]
    Dr Crowley provided a TAC Certificate of Capacity, that reported a diagnosis of "Exacerbation of Adjustment Disorder with Anxiety and Depression" on 16 July 2020.  Although Dr Crowley was not her treating doctor in October / November 2019 (when the aggravation was variously said to have occurred), Ms Prior asserted that he provided the "new and current" certificate at the request of WorkCover Queensland and after she had moved back to Victoria.  Ms Prior further explained at the Hearing that Dr Crowley did not rely only upon the verbal history she provided him – but he also relied on the written medical records of Dr Bennett.[89]
  1. [118]
    The Respondent asserted that Ms Prior did not suffer an aggravation of her pre-existing psychiatric condition because:
  • there was no mention of "aggravation" or "exacerbation" in any of the GP's consultation notes for the numerous appointments throughout 2019 at all;
  • there was no mention of "aggravation" or "exacerbation" in any of the six workers' compensation medical certificates prepared by Dr Bennett, even though a particular question prompted him to record whether that was the case; and
  • it was not until 24 June 2020 that Ms Prior asked Dr Bennett whether there had been an "exacerbation" of her psychiatric condition in October 2019.
  1. [119]
    Dr Bennett accepted the Regulator's proposition that, as an experienced medical practitioner, he would make record in his clinical notes if he considered there to be an aggravation of a pre-existing medical condition.  However, Dr Bennett added the comment "yep, there was a firm change."[90]  Dr Bennett said Ms Prior was worse in November 2019 and that her adjustment disorder progressed and the existing diagnosis got worse.[91]  By 28 November 2019, Dr Bennett confirmed the medical evidence showed that Ms Prior was highly distressed at the thought of returning to work.[92]  Whilst the file note recorded Dr Bennett's opinion that Ms Prior had not sustained an aggravation of a pre-existing psychiatric condition in or about September / October 2019", Ms Prior retained "full function in October 2019 and not until late November 2019 did (her) capacity reduce."[93]
  1. [120]
    All the contributing factors that led to the deterioration of Ms Prior's health such that she was unable to work were not included in the first workers' compensation claim.  Only in hindsight was it recognised that Ms Prior's pre-existing psychiatric condition had gotten worse which "highly likely that is the reason why there is no mention of the words aggravation or exacerbation within the medical notes during the period of change in capacity, function and general worsening of (her) condition."[94]  At the Hearing, Dr Bennett agreed that it is not common practice to define an injury as an aggravation or exacerbation if it is a condition that is known to fluctuate.[95]  Dr Bennett accepted the proposition put to him by Ms Prior that "in a case like the worsening of (her) adjustment disorder, he wouldn't write 'aggravation', as there was documentation of the symptoms and change of capacity.  This explains why there is no mention of the words aggravation or exacerbation in the medical notes until 2020.  It is evident that the condition became worse as it is reflected in the assessments and reduced functioning and capabilities as documented in the medical certificates."[96]
  1. [121]
    Dr Bennett had earlier agreed with the Respondent that Ms Prior's condition "waxed and waned".[97]  However, his evidence at the Hearing was that "at no time during the period of September 2019, when Claire returned to work, until 28 November 2019, when Claire ceased working, did the condition get better.  He agreed that there was only evidence of it getting worse during this time, so Claire's condition did not in fact wax and wane during this time."[98] 
  1. [122]
    I acknowledge that whilst Ms Prior did not cease her paid employment with USQ until 13 December 2019, she was not working for the entire time due to various absences.  Ms Prior was placed on lengthy special leave throughout the period of the workplace investigations, she joined her family on holiday interstate, her return to work was postponed upon provision of Dr Bennett's suitable duties checklist, she had numerous short absences under medical certificates certifying she was unfit for work, she had a further period of paid leave, and then went on extended sick leave while awaiting the outcome of her first workers' compensation claim.
  1. [123]
    While Ms Prior suffered "eventual decompensation to the point of not wanting or being capable of working at all on 28 November 2019", she had entertained the possibility of leaving USQ from as early as 14 October 2019.  Therefore, it appears to me that Ms Prior was certainly on a downward slide from that point. Notwithstanding that though, the precise date that Dr Bennett certified Ms Prior as having no functional capacity for work was on 28 November 2019.
  1. [124]
    Dr Crowley, Mr Collins, Ms Prior and the Regulator have all agreed that the medical expert best placed to inform the questions to be decided at the preliminary Hearing was Dr Bennett, as Ms Prior's treating General Practitioner in the relevant period.
  1. [125]
    Perhaps unhelpfully to the parties' preparations for this preliminary Hearing, Dr Bennett's opinion on whether or not Ms Prior suffered an aggravation of the pre-existing psychiatric condition appeared to somewhat evolve.
  1. [126]
    When the Regulator conferenced with him on 15 September 2022,[99] Dr Bennett confirmed that:
  • the information provided in his report for Ms Prior's income protection claim was consistent with her having sustained a primary Adjustment Disorder and inconsistent with her having sustained an aggravation or exacerbation of a pre-existing condition.  In response to a question on the form as to whether Ms Prior's symptoms had changed in frequency or severity, Dr Bennett had ticked 'No' although he went on to comment 'Fluctuant course depending on situations';
  • he agreed 'absolutely' that this was consistent with Ms Prior having sustained one psychiatric injury, with symptoms that waxed and waned dependent on the stressors occurring at the time; and
  • the review of the contemporaneous medical records confirmed that Ms Prior had not sustained an aggravation or exacerbation of a pre-existing psychiatric condition in or about September / October 2019.
  1. [127]
    When Ms Prior conferenced with him on 30 November 2022,[100] Dr Bennett confirmed that:
  • Ms Prior was definitely worse in November 2019, because before this she was trying to work.  Dr Bennett could not determine whether that is an exacerbation, or just a natural progression;
  • it was Ms Prior's existing diagnosis that just got worse;
  • in order to prove an exacerbation, "you have to prove that something occurred at that time".  Dr Bennett agreed that his progress notes documented some of the stressors Ms Prior alleged to have occurred in the relevant period;
  • Ms Prior's existing condition was obviously worse late November 2019; and
  • an Adjustment Disorder fluctuates.  Dr Bennett explained that "If they had been really nice to you, you would've been back at work, and this wouldn't have occurred", "The next thing that occurred was that you got worse, and were downgraded and required a medical certificate to remove yourself from work." 
  1. [128]
    At the Hearing, Dr Bennett's evidence-in-chief was that:[101]
  • he accepted Ms Prior was worse after her return to work and the continued stressors she experienced in her efforts to stay at USQ, stating "The progress of my notes certainly show that there was a period where you were worse and left full-time employment";
  • as at 24 October 2019, Ms Prior had full capabilities to return to the pre-injury duties;
  • on 30 October 2019, Dr Bennett noted stressors that were occurring at that time, reduced Ms Prior's working hours and recorded a diminution in her functional capacity "with cognition, psychological functioning now affected", though at that time Ms Prior's return to pre-injury duties was not prevented;
  • on 4 November 2019, Dr Bennett noted stressors that were occurring at that time and an increase in Ms Prior's symptoms;
  • on 7 November 2019, Dr Bennett commented that "Restriction with employment capabilities marked as being reduced capacity pertain to interactions where bullying has occurred…";
  • as at 14 November 2019, Dr Bennett certified that Ms Prior was capable of working, despite having an Adjustment Disorder with Anxiety;
  • on 28 November 2019, Dr Bennett noted some further stressors, that Ms Prior was "obviously distressed" and that the "requirements for the certificate couldn't be fulfilled."  At that point, Dr Bennett certified that Ms Prior had "no functional capacity for any type of work";
  • Dr Bennett confirmed that Ms Prior was definitely worse in November 2019.  That the existing diagnosis just got worse, such that by late November 2019 Ms Prior required a month-long (which turned out to be months-long) certification that she could not work at all;
  • even though Dr Bennett had earlier agreed with the Respondent's suggestion that Ms Prior's condition "waxed and waned", Dr Bennett could not see any evidence in his notes that the symptoms of Ms Prior's adjustment disorder got better at all from the time she returned to work in late September 2019 to when she ceased work on 28 November 2019, only that her symptoms got worse; and
  • Dr Bennett accepted that he probably wouldn't notate "aggravation of adjustment disorder" in his progress notes when it got worse because he would otherwise have recorded the symptoms and changing capacity in his progress notes.
  1. [129]
    In cross-examination, Dr Bennett's evidence was that:[102]
  • he still held the clinical opinions expressed in the File Note of the conference with the Regulator dated 15 September 2022;
  • despite being given the specific opportunity in the work capacity certificate to "Describe the mechanism in detail to pre-existing factors or conditions aggravated if not previously supplied", Dr Bennett did not record that there was an aggravation or an exacerbation.  Dr Bennett agreed with the proposition put to him by the Regulator that would be consistent with him "holding a fairly consistent opinion that there wasn't, in fact, an aggravation or exacerbation";
  • Dr Bennett opined "I think it was the original – ongoing original condition".  He agreed that there was "one psychiatric or psychological injury here" and then "that condition developed over time in the months that followed."  Dr Bennett agreed with the proposition put to him by the Regulator that "it's in the nature of an adjustment disorder that there will, in fact, be occasions where there's a fluctuation in the symptoms of the patient" and the "level of symptomology" is "dependent on the stressors", consistent with "that process of a normal adjustment disorder";
  • as early as 16 October 2019, the adjustment disorder was impacting Ms Prior in that she required some time off work; and
  • "…adjustment disorder can fluctuate depending on people's insults or perceived insults.  So the course of her disease had been potentially fluctuant."
  1. [130]
    In re-examination, Dr Bennett's evidence was that:[103]
  • "An aggravation would be, potentially, where it worsened.  So a new set of circumstances or changes and a different situation in the way the person was responding"; and
  • he agreed with the proposition put to him by Ms Prior that she did worsen from her return to work until late November 2019, stating "There definitely was some deterioration over time because you were originally able to work then unable to work…"
  1. [131]
    In the end, that was the nub of this matter.  Both aspects of Dr Bennett's description of aggravation are present here in Ms Prior's case.  New stressors were alleged to have occurred in the relevant period – and Ms Prior's condition worsened to the extent that she ceased work entirely on 28 November 2019.  Although the Respondent had submitted that Ms Prior "has relied upon the work capacity certificate provided by Dr Bennett on 24 October 2019 in support of…the alleged aggravation injury", I find that the date of aggravation was when Dr Bennett certified that Ms Prior was unable to work on 28 November 2019.
  1. [132]
    For those reasons, I am satisfied that Ms Prior has proved to the required standard that:
  • an existing psychiatric disorder was exacerbated; and
  • symptoms of the existing disorder worsened.

Order

1. The Appellant has sustained an aggravation of a personal injury.

2. The Appellant sustained the aggravation on 28 November 2019.

Footnotes

[1] T 1-14, line 32.

[2] Manager, Health Services.

[3] Employee Assistance Program.

[4] Respondent's Statement of Facts and Contentions, filed 21 April 2022, 2 [9].

[5] Acting Associate Director of Health and Wellness.

[6] Chronology prepared by Mr P O'Neill, counsel for the Regulator, Marked for Identification at the Hearing.

[7] Ms Prior's treating GP in Toowoomba.

[8] Exhibit 1, 35.

[9] Ibid.

[10] Chronology prepared by Mr P O'Neill, counsel for the Regulator, Marked for Identification at the Hearing.

[11] Claim number S19FB646754.

[12] Chronology prepared by Mr P O'Neill, counsel for the Regulator, Marked for Identification at the Hearing.

[13] GP at the Middle Ridge Family Practice.

[14] Exhibit 1, 39.

[15] Ms Noelene Atterbury.

[16] January 2020.

[17] Exhibit 1, 60.

[18] 7 July 2020.

[19] Chronology prepared by Mr P O'Neill, counsel for the Regulator, Marked for Identification at the Hearing.

[20] Exhibit 1, 16.

[21] Ibid 7, 8, 12, 14, 15, 18.

[22] Ibid.

[23] Ibid 7.

[24] Ibid 8 and 14.

[25] Ibid 7, 8, 12, 14, 15, 18.

[26] Ibid.

[27] Chronology prepared by Mr P O'Neill, counsel for the Regulator, Marked for Identification at the Hearing.

[28] Ibid.

[29] Decision of Workers' Compensation Regulator, 26 November 2021, 20.

[30] Ibid.

[31] Church v Workers' Compensation Regulator [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q-COMP and Coyne (2003) 172 QGIG 1447.

[32] Ribeiro v Workers' Compensation Regulator [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 

[33] [2021] QIRC 315.

[34] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32(3)(ba).

[35] Omanski v Q-Comp [2013] ICQ 7, [11] (Hall P).

[36] [2013] QIRC 161.

[37] [2008] QIC 57.

[38] T 1-1, lines 15 – 16.

[39] Respondent's Statement of Facts and Contentions, filed 21 April 2022, 11 [129] – [130].

[40] Ibid.

[41] Ibid [134]; Appellant's closing submissions, filed 31 January 2023, 2 [xiv].

[42] Ibid [xv]; Respondent's closing submissions, filed 14 February 2023, 2 [7].

[43] Chronology prepared by Mr P O'Neill, counsel for the Regulator, Marked for Identification at the Hearing.

[44] T 1-14, lines 25 – 26.

[45] T 1-15, lines 15 – 20; Appellant's Statement of Facts and Contentions, filed 23 March 2022.

[46] Appellant's Statement of Facts and Contentions, filed 23 March 2022, 3.

[47] T 1-15, lines 20 – 22.

[48] Respondent's Statement of Facts and Contentions, filed 21 April 2022, 11 [131].

[49] Ibid [132].

[50] Ibid [134].

[51] Ibid [138] – [140].

[52] Respondent's closing submissions, filed 14 February 2023, 1 [4].

[53] Ibid 10 [75].

[54] [2017] QIRC 080.

[55] [2022] QIRC 033.

[56] Exhibit 4, 1 [3].

[57] Ibid [9].

[58] Ibid [10].

[59] Ibid [12].

[60] Exhibit 7, 1 [1].

[61] Ibid 2 [2].

[62] Ibid [4].

[63] Ibid.

[64] Ibid.

[65] T 1-17, lines 15 – 17.

[66] Exhibit 2, 2 [9].

[67] Ibid [13].

[68] Ibid 3 [16].

[69] Exhibit 3, 1 [9].

[70] Ibid [11].

[71] Ibid 2 [14].

[72] Ibid [18].

[73] Ibid [19].

[74] Ibid [20].

[75] Ibid [21]

[76] Exhibit 2, 6 [36].

[77] Ibid [38].

[78] Exhibit 3, 2 [24].

[79] Ibid 3.

[80] The Respondent's chronology identified that:

•Ms Prior started counselling sessions with Mr Collins through EAP in December 2018. 

•About 7 months later, Ms Prior saw a GP and commenced anti-depressant medication - the day after she told Mr Collins that she had been going okay that week.

•Dr Bennett then referred her to a psychiatrist. 

•On 24 September 2019, Dr Bennett recorded a diagnosis of "Adjustment Disorder with associated anxiety".

•In October 2019, a performance management plan was implementation for Ms Prior.

•The following day, she reported having a severe panic attack to Dr Bennett.

•Around the same period, she also had suicidal thoughts.

•By mid-October 2019, Ms Prior commenced negotiations for a potential separation package; however only a few days later she advised USQ that she would not accept its offer.

•A suitable duties checklist was prepared on 7 November 2019 and Ms Prior returned to work a week later.

•On 10 December 2019, Ms Prior told Dr Bennett that her first workers' compensation claim was rejected.  Dr Bennett recorded "Still lots of SEs and no real benefit from sertraline – It's an adjustment disorder and needs (time) and adjustment to fix."

•Ms Prior's employment at USQ ended on 13 December 2019.

•A month later, Dr Bennett completed a medical report for Ms Prior's income protection claim.

•Dr Bennett prepared a GP Mental Health Care Plan in early February 2020.  Later that month, Ms Prior was referred to a psychologist.

•In mid-2020, Ms Prior asked Dr Bennett if there was an exacerbation in October 2019.

•About a fortnight later, Ms Prior lodged her second workers' compensation appeal – this time for an aggravation of her psychiatric condition.

•On 16 July 2020, Dr Mark Crowley provided a TAC Certificate of Capacity.  That reported a diagnosis of "Exacerbation of Adjustment Disorder with Anxiety and Depression."

[81] Exhibit 1, 7; T 1-25 – T- 1-26; Appellant's closing submissions, filed 31 January 2023, 5 [17].

[82] Emphasis added.

[83] T 1-65.

[84] T 1-66; Respondent's closing submissions, 8 [56].

[85] T 1-67; Ibid [57].

[86] Exhibit 1, 99.

[87] Exhibit 3; T 1-29; Appellant's closing submissions, filed 31 January 2023, 8 [p].

[88] Appellant's closing submissions, filed 31 January 2023, 2 [xv].

[89] T 1-60; Appellant's closing submissions, filed 31 January 2023, 9.

[90] Appellant's closing submissions, filed 31 January 2023, 2 [viii]; T 1-32.

[91] Appellant's closing submissions, filed 31 January 2023, 8 [n]; T 1-29.

[92] Appellant's closing submissions, filed 31 January 2023, 8; T 1-28.

[93] Appellant's closing submissions, filed 31 January 2023, 9 [6].

[94] Ibid 1 [vi].

[95] Ibid [vii]; T 1-29 - T 1-30.

[96] Ibid 9 [x].

[97] Exhibit 2.

[98] T 1-29; Appellant's closing submissions, filed 31 January 2023, 9 [w].

[99] Exhibit 2, 5-6 [35]-[38].

[100] Exhibit 3, 2-3 [24]-[31].

[101] T 1-25 – T 1-31.

[102] T 1-31 – T 1-36.

[103] T 1-37.

Close

Editorial Notes

  • Published Case Name:

    Prior v Workers' Compensation Regulator

  • Shortened Case Name:

    Prior v Workers' Compensation Regulator

  • MNC:

    [2023] QIRC 104

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    05 Apr 2023

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
Carman v Q-COMP [2007] ICQ 43
1 citation
Jump To
Cite 1 - [2007] ICQ 43
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
CS Energy Limited v Q-COMP [2008] QIC 57
2 citations
Jump To
Cite 1 - [2008] QIC 57
Cite 2 - [2008] QIC 57
Gillan v Workers' Compensation Regulator [2021] QIRC 315
1 citation
Jump To
Cite 1 - [2021] QIRC 315
JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13
1 citation
Jump To
Cite 1 - [2013] ICQ 13
Karipa v Q-COMP [2013] QIRC 161
2 citations
Jump To
Cite 1 - [2013] QIRC 161
Cite 2 - [2013] QIRC 161
Omanski v Q-COMP [2013] ICQ 7
2 citations
Jump To
Cite 1 - [2013] ICQ 7
Cite 2 - [2013] ICQ 7
Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181
2 citations
Jump To
Cite 1 - (1996) 152 QGIG 1181
Cite 2 - (1996) 152 QGIG 1181
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
2 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
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
Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 33
2 citations
Jump To
Cite 1 - [2022] QIRC 33
Cite 2 - [2022] QIRC 33
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
Workers' Compensation Regulator v Guymer [2017] QIRC 80
2 citations
Jump To
Cite 1 - [2017] QIRC 80
Cite 2 - [2017] QIRC 80

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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