Witcherley v Workers' Compensation Regulator
[2023] QIRC 272
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- Unreported Judgment
- Witcherley v Workers' Compensation Regulator[2023] QIRC 272
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Witcherley v Workers' Compensation Regulator[2023] QIRC 272
Witcherley v Workers' Compensation Regulator[2023] QIRC 272
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Witcherley v Workers' Compensation Regulator [2023] QIRC 272 |
PARTIES: | Witcherley, Karen (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2022/77 |
PROCEEDING: | Appeal against decision of Workers' Compensation Regulator |
DELIVERED ON: | 5 September 2023 |
HEARING DATE: | 4 September 2023 |
MEMBER: | Dwyer IC |
HEARD AT: | Bundaberg |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision of the respondent – where the appellant sustained a personal injury in the form of a psychological/psychiatric disorder – where there is a dispute about the date on which the appellant sustained the personal injury – where appellant contends the personal injury was sustained on 16 June 2021 – where respondent contends the personal injury was sustained on 31 March 2021 – determined the appellant sustained the personal injury on 31 March 2021 |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003 (Qld) |
CASES: | Gambaro v Workers' Compensation Regulator [2017] ICQ 005 |
APPEARANCES: | Ms K. Witcherley, the Appellant in person. Mr P. O'Neill of Counsel directly instructed by Ms. R Jamieson of the Respondent. |
Reasons for Decision (delivered ex tempore)
Introduction
- [1]Ms Karen Witcherley is employed as a Teacher by the State of Queensland (Department of Education). Ms Witcherley filed a notice of appeal on 28 April 2022 in relation to a decision of the Workers' Compensation Regulator ('the Regulator') that was dated 28 March 2022. In summary, Ms Witcherley made a workers' compensation claim on 30 May 2021 in relation to numerous stressors she has identified as having occurred during her employment in Term 1 and 2 of 2021.
- [2]Ms Witcherley's appeal has been fully case managed and is now ready to proceed to hearing. The parties have each filed statements of facts and contentions (and subsequently filed amended statements of facts and contentions) and exchanged witness lists. The witness lists of both parties are extensive. At a mention of this matter on 12 July 2023, the parties estimated the hearing would take up to three weeks to be heard.
- [3]As an alternative to allocating three weeks' hearing time the parties agreed to proceed with a preliminary hearing of the matter to determine the date on which Ms Witcherley sustained a personal injury for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
- [4]By dealing with this issue on a preliminary basis, it is expected that it may be possible to confine the facts of the matter which would in turn reduce the number of witnesses and the hearing time required to deal with the appeal.
Background
- [5]In respect of the preliminary hearing, the relevant background facts are that Ms Witcherley filed an amended statement of facts and contentions on 29 August 2022. That statement of facts and contentions extends to approximately 20 pages (plus attachments) and lists 17 separate stressors said to have occurred variously during Term 1 and 2 of 2021.[1] Term 1 and 2 in a school calendar roughly extend from late January to late June.
- [6]There is no dispute that Ms Witcherley first sought assistance from a doctor for her psychological symptoms on 16 April 2021 i.e. during the holidays immediately following the end of Term 1. Further, there is no dispute that the date of injury nominated by Ms Witcherley's general practitioner on a workers' compensation certificate on 25 May 2021 is 31 March 2021. Notably, this date coincides with a listed stressor namely, a meeting with the principal of the school where Ms Witcherley was employed.
- [7]The Regulator contends that the date of injury therefore ought to be identified as 31 March 2021. Ms Witcherley has broadly resisted this proposition put by the Regulator. During the course of her evidence, Ms Witcherley was asked under cross-examination to identify which date she thought was the date of injury. Ms Witcherley (surprisingly) did not appear to have contemplated any alternative date.[2]
- [8]Ultimately, in the course of her evidence, Ms Witcherley settled upon nominating 16 June 2021 as the date of injury (being the date that she ceased work).[3]
- [9]The question for the Commission's determination on this preliminary issue is: on what date did Ms Witcherley sustain a personal injury within the meaning of the Act.
Consideration
- [10]Evidence was called in this preliminary hearing from both Ms Witcherley and a Dr Ligadu, who is a general practitioner who attended upon Ms Witcherley at the relevant times. Relevantly, Ms Witcherley confirmed in her evidence that she experienced a gradual increase of symptoms from the beginning of Term 1. Her condition reached an acute stage during and following a meeting with the school principal on 31 March 2021.[4]
- [11]During her evidence, Ms Witcherley indicated that she was sufficiently distressed after that meeting that she would have attended upon a doctor immediately on 31 March 2021 or thereafter but could not due to a lack of available appointments. The first opportunity that Ms Witcherley had to attend a general practitioner was on 16 April 2021, and it was at that consultation that Ms Witcherley reported her distress, her symptoms and the circumstances giving rise to them. As a consequence, she was prescribed antidepressant medication.
- [12]In giving her evidence, Dr Ligadu confirmed that she saw Ms Witcherley on 16 April 2021 and that Ms Witcherley explained the distress she was experiencing and attributed it to predominantly the meeting on 31 March 2021.[5]
- [13]Dr Ligadu considered that the presentation of Ms Witcherley at that consultation on 16 April 2021 was consistent with the presence of a mental illness and considered, as a consequence of that consultation on 16 April 2021, that the mental illness appeared to be related to the meeting on 31 March 2021.[6]
- [14]Dr Ligadu subsequently issued workers' compensation medical certificates that are before the Commission in the bundle of documents that is identified as Exhibit 1. Each of those medical certificates (in particular, the medical certificate issued on 25 May 2021) identifies the date of injury as being 31 March 2021.
- [15]Following the close of evidence in this preliminary hearing, the parties were given an opportunity to make closing submissions. Ms Witcherley was apparently not expecting this and was unprepared. Conversely, the Regulator had prepared written submissions and prepared a bundle of relevant authorities.
- [16]In the interests of fairness to Ms Witcherley, the matter was stood down for approximately 45 minutes to give Ms Witcherley an opportunity to consider the Regulator's written submissions and to prepare her own oral submissions.
- [17]Ms Witcherley's closing submissions offered no cogent reason as to why the Commission ought to consider a date of injury other than 31 March 2021. Ms Witcherley demonstrated throughout the proceedings and in her submission a complete lack of insight or understanding into the process that was being undertaken. It would seem that her entire resistance to the Regulator's proposal to nominate 31 March 2021 as the date of injury was born out of mistrust. Throughout the proceedings Ms Witcherley was at pains to remind the Commission she was unrepresented, presumably to explain her lack of understanding of the process. It is trite to observe that self-representation is a misfortune, not a privilege.[7]
- [18]There was no compelling evidence or submission to support any conclusion other than that the date of injury is unquestionably 31 March 2021. Consequently, the Commission makes that finding.
Costs
- [19]Before proceeding to make orders, the Commission notes that the question of costs in respect of the preliminary hearing has been agreed to be dealt with as reserved. However, it ought to be noted that at the close of the evidence, Ms Witcherley was not only given time to read the submissions of the Regulator and to prepare her own, but she was also offered some guidance by the Commission to reconsider her continued resistance to the proposed date of injury in light of the evidence that had now been heard by the Commission.[8]
- [20]Upon resuming to hear submissions, Ms Witcherley continued to oppose the position put forward by the Regulator. Upon hearing the evidence and Ms Witcherley's closing submissions, it was more than apparent that there was no cogent reason for her to continue to resist that conclusion.
- [21]Consequently, the Commission was required to adjourn and consider the matter overnight, and all parties were required to return the following day for the delivery of an ex tempore decision.
- [22]While the Commission intends to reserve costs, Ms Witcherley ought to be on notice that she will need to present very compelling arguments as to why the Commission should not order costs of this preliminary hearing in favour of the Regulator if the question of costs is later raised.
Order
- [23]I make the following orders:
- The date of injury is determined to be 31 March 2021.
- Costs are reserved.
Footnotes
[1] It is noted that the stressors are not particularly well particularised with respect to precise dates.
[2] T 1-43, ll 1-5.
[3] T 1-43, ll 9-15.
[4] T 1-33 - T 1-34.
[5] T 1-53, ll 5-15.
[6] T 1-58, ll 1-15.
[7] Gambaro v Workers' Compensation Regulator [2017] ICQ 005, [14].
[8] T 1-61, ll 10-45.