Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2023
  4. Roberts v Workers' Compensation Regulator - [2023] QIRC 76

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Roberts v Workers' Compensation Regulator[2023] QIRC 76

Roberts v Workers' Compensation Regulator[2023] QIRC 76

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Roberts v Workers' Compensation Regulator [2023] QIRC 076

PARTIES:

Roberts, Karen Lois

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2020/90

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

6 March 2023

HEARING DATE:

23, 24, 25 & 26 July 2021

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

1. The appeal is allowed.

2. The decision of the Regulator dated 25 June 2020 is set aside and substituted with the following decision –

That Ms Roberts' application pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld) is one for acceptance.

3. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission. 

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychological injury – whether injury arose out of or in the course of employment – whether the employment was the major significant contributing factor to the psychiatric injury – whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment – appeal allowed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 11, 32, 132A

CASES:

Blackwood v Adams [2015] ICQ 001

Blackwood v Mana [2014] ICQ 027

Carlton v Blackwood [2017] ICQ 001

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

Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301

Q-Comp v Rowe, [2009] ICQ 32

Rucker v Blackwood [2014] ICQ 028

Simon Blackwood (Workers' Compensation Regulator) v Champman [2016] ICQ 11

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10

State of Queensland (Queensland Health) v Q-Comp and Beverly Coyne (2003) 172 QGIG 1447

Yousif v Workers’ Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr R Hii of Counsel, instructed by Ms K Avery of Kare Lawyers for the Appellant

Mr S.P Gray of Counsel, instructed by Ms L Shaw of the Workers' Compensation Regulator

Reasons for Decision

Background of the Appeal

  1. Ms Karen Roberts was employed from April 1995 as a teacher with the Department of Education and Training ('the Department'). On 27 November 2019, Ms Roberts lodged an application for the assessment of a permanent impairment pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('the Act') ('the s 132A application'). [1]
  1. In the s 132A application, Ms Roberts particularised her injury as 'anxiety, depression, and post-traumatic stress disorder' and provided the following responses with respect to the date of her injury:

If the event occurred over a period of time:

Date the event period began:

Approx Term 3 2018

Date the event period ended:

April 2019

Date the symptoms began:

Approx. 2018

Date of first consultation with medical practitioner

April 2019

  1. Further, in the s 132A application Ms Roberts particularised the events giving rise to her injury as:

In my role working with students who were not engaged with their education, I was threatened by parents, physically assaulted by students and verbally abused by a principal. Despite referring these recurring problems to my supervisors, there was no support available to me. There were no repercussions for parents who threatened me. I was emotionally vulnerable from the physical threats and emotional abuse when the Department was restructured and I was transferred back to classroom teaching. I requested support in returning to classroom teaching given that I had not worked in a classroom for three years by that time. My request for support was refused. I was placed in a supervisory position in a classroom without a lesson plan and without warning that the students had extreme behavioural issues. One student got into my personal space and I felt so unsafe that I needed to leave work in April 2019 and I have not been able to return since that time.

  1. Section 132A(7) of the Act provides that WorkCover may reject the application if they are satisfied inter alia that the worker has not suffered an injury within the meaning of s 32 of the Act. On 18 March 2020, WorkCover rejected the application on that basis.
  1. Ms Roberts subsequently sought a review of this decision with the Workers' Compensation Regulator ('the Regulator'). On 26 June 2020, the Regulator confirmed the earlier decision of WorkCover to reject the application. Ms Roberts filed this appeal against the Regulator's decision on 14 July 2020.

Onus of proof

  1. The appeal is by way of a hearing de novo,[2] in which Mr Roberts bears the onus of proving on the balance of probabilities that her injury falls within s32(1) of the Act.[3]
  1. Ms Roberts accepts the onus to prove injury within the meaning of s 32(1) of the Act but submits that the Regulator bears the onus of proving that the injury is excluded by virtue of section 32(5) of the Act.[4]
  1. Ms Roberts referred to the decision of Simon Blackwood (Workers' Compensation Regulator) v Champman ('Champman'),[5] relying on the following passages from that decision:

…"It is, of course, open to the Regulator to nominate some other action or event which is said to have caused the disorder and comes within s 32(5)."

…"It follows, of course, that in the unlikely event that unreasonable management action is taken in a reasonable way, then the subsection will, likewise not apply."[6]

  1. The Regulator submits that the onus remains entirely with Ms Roberts, including the onus to establish that her injury is not excluded by the operation of s 32(5) of the Act.[7] The Regulator relied on multiple authorities to support this submission.  
  1. In Q-Comp v Rowe,[8] President Hall observed that the Appellant bore the onus of 'barring' the operation of s 32(5)(a) of the Act.
  1. Further, in Blackwood v Mana,[9] the onus was again confirmed:

[23]  A worker who claims an entitlement under the Act carries the onus of satisfying the relevant authority that s 32(1) applies and s 32(5) does not apply.

…

[25]  …The learned Magistrate misunderstood the onus of proof and, in effect, required the regulator to prove that the management action was reasonable and taken in a reasonable way. This was an error.

  1. In Rucker v Blackwood,[10] it was observed that it was for the Appellant to demonstrate that section 32(5) of the Act did not apply.
  1. The portions of Champman relied on by Ms Roberts are unclear as to their effect and in any event, do nothing to displace the well traversed jurisprudence relied on by the Regulator. Those authorities plainly remove any controversy as to where the onus rests.
  1. In the circumstances, in the event management action is ultimately relevant to this appeal, it will be for Ms Roberts to demonstrate that any of it causally connected to her injury was unreasonable or taken in an unreasonable way.

Scope of facts relevant to the appeal

Introduction

  1. An issue regarding the scope of facts relevant to the claim emerged during proceedings. In essence, the Regulator's response to the appeal was premised on the proposition that Ms Roberts' appeal should be confined to the particulars of her claim as they were described in the s 132A application. The Regulator contended that the more expansive (and unchallenged) factual assertions set out in Ms Roberts' Statement of Facts and Contentions ('SOFC') were not matters to be taken into account in determining the appeal. Ms Roberts on the other hand sought to rely on the broader range of facts and stressors that were set out in her SOFC.
  1. On reflection, it would seem that this issue was of sufficient significance that it ought to have been resolved on a preliminary basis prior to the hearing of the appeal. A determination in favour of the Regulator might have reduced the hearing time of the appeal. Conversely, as is evident from the findings that follow, a determination in favour of Ms Roberts may have caused the Regulator to proceed differently or may have averted the need for proceedings entirely.
  1. In the circumstances, efficiency dictates that this question be resolved before consideration of the evidence.

Scope of facts

  1. At the outset it ought to be noted that at the time of making their respective decisions, both WorkCover and the Regulator had access to (and presumably) considered the report of Dr Andrew Shaw, Consultant Psychiatrist, dated 13 February 2020.[11] In that report, Dr Shaw diagnoses Ms Roberts with Post Traumatic Stress Disorder ('PTSD') and inter alia describes the 'index' traumatic event as an incident in 2007 when Ms Roberts was chased by a student swinging a baseball bat at her head. Dr Shaw described this incident as "highly significant".[12]
  1. So, despite the rudimentary details and somewhat limited factual scope set out by Ms Roberts in the s 132A application, the more expertly informed details about her claim (including the genesis of her PTSD) were fully available to the decision-makers from the earliest stage of the decision-making process.
  1. Following the filing of the appeal, the parties filed material in accordance with directions of the Commission. In particular, each party filed a SOFC which in Ms Roberts' case incorporated her nominated stressors.
  1. By comparison to the details contained in the s 132A application, the SOFC filed by Ms Roberts on 21 September 2020 provided a more comprehensive and expansive factual basis for her claim for compensation. In particular, at paragraph 3(a) and (b) of her SOFC, Ms Roberts particularises traumatic incidents said to have occurred between 2007 and 2009, and between 2015 and 2016 respectively. These events include the 2007 'index' event referred to by Dr Shaw in his report.
  1. Further, Ms Roberts' SOFC contends these traumatic incidents have caused her to suffer PTSD. The key differences between the s 132A application and the SOFC are that the SOFC widens the factual foundation alleged as causative to the injury while narrowing the diagnosis said to be the personal injury, from three conditions to one i.e. PTSD. 
  1. In its response SOFC filed on 3 November 2020, the Regulator dealt with the more expansive factual matrix asserted by Ms Robert by making a non-admission of the facts contended by Ms Roberts at paragraph 3(a) and (b) of her SOFC. It was further said in response by the Regulator that those matters "cannot form the basis of her claimed injury because they occurred prior to the period nominated in her application" (a reference to the s 132A application).[13]
  1. It is clear from this language in the Regulator's SOFC that they are dismissive of the matters pre-dating 2018 as irrelevant and effectively (though not overtly or directly) contending that Ms Roberts' appeal must be confined to the scope of the claim identified in the s 132A application.  
  1. Despite Ms Roberts' (allegedly impermissible) extension of her claim in the SOFC, there was no interlocutory application by the Regulator to strike out those portions. Further, there was no objection taken by the Regulator during the proceedings to evidence being heard about these apparently superfluous facts.
  1. On the contrary, the Regulator explained they accepted evidence about the earlier nominated stressors "because they had relevance" to the diagnosis of PTSD.[14]
  1. Notwithstanding this rather passive approach to the facts and evidence relied on by Ms Roberts during the hearing, there were forceful arguments presented in the Regulator’s closing submissions filed on 25 October 2021 arguing for the exclusion of consideration of the earlier traumatic events being outside the nominated period.[15]

Merit of the Regulator's argument to contain the facts

  1. Nowhere in the Regulator's SOFC, or their submissions, or on the transcript of proceedings have they identified any statutory or other lawful authority supporting the proposition that an appellant is inextricably bound by the particulars specified in a s 132A application. 
  1. The function of a s 132A application is to initiate an application for a form of compensation under the Act. It does not constitute the commencement of a legal proceeding and is often completed at a time when formal particulars are unknown. The determination of a s 132A application is by decision of WorkCover Queensland which can then be subject to a review by the Regulator.
  1. An appeal against a decision of the Regulator, such as this appeal, is not dealt with by way of a review of the earlier decision but by way of a hearing de novo i.e. a fresh hearing of an application on its merits.[16] Importantly, in the conduct of such appeals the characterisation of the claim is not determined by earlier statements or claims made by an appellant. The only recognised limit on proceedings in appeals of this nature is that an appellant is bound by their SOFC.  
  1. The Industrial Court of Queensland has recognised that SOFCs and List of Stressors will form the boundaries of appeals.[17] Further, an appellant's case must be known before the hearing starts and cannot be allowed to evolve.[18] This is the function of the SOFC and the List of Stressors which, once filed, become a complete statement of a party's case upon which the Commission can expect to rely.[19]
  1. In something of a contrast to these well-established principles, rather than attempt to hold Ms Roberts to the limits of the SOFC, the Regulator argues that she (and the Commission) must be confined to consideration of only the matters contained within the narrow scope of the claim identified in the s 132A application.
  1. It is not as if the Regulator complains that Ms Roberts has raised matters of which WorkCover and they were not aware of at the time of the earlier decisions. While that may not be a barrier in any event, the Regulator has been on notice (via the reports of Dr Shaw) of the apparent relevance of the events dating back to 2007 since the time of its review of the WorkCover decision and which were clearly particularised in the SOFC filed by Ms Roberts before the hearing commenced.
  1. The Regulator simply asserts Ms Roberts cannot depart from the particulars contained in the s 132A application. 
  1. In the circumstances, it would appear the Regulator has founded a significant part of its response to the appeal on a proposition that is not only unsupported by law, but which also runs contrary to the principles underpinning a hearing de novo. The proposition set out in paragraphs 5 and 6(e) of the Regulator's SOFC is plainly wrong.

Merits of the Regulator's further attempt to contain the facts

  1. In addition to the novel assertion that Ms Roberts' claim must be confined to the matters falling within the narrower time period nominated in the s 132A application, the Regulator has also seized upon comments made by Counsel for Ms Roberts during the hearing and has sought to characterise them as some form of concession that the traumatic incidents pre-dating term 3 in 2018 do not form part of the claim.
  1. In written submissions, the Regulator refers to an exchange between Counsel for Ms Roberts and the bench and contends that, contrary to the alleged 'concession', Ms Roberts 'now relies on all traumatic events occurring from 2007 to 23 April 2019'.[20] The Regulator seeks to characterise the claim i.e. including matters back to 2007 as something of an impermissible deviation from a stated course or something new.[21] This characterisation is simply not accurate.
  1. Further, the suggestion in the Regulator's submissions that the opening remarks of Counsel for Ms Roberts somehow further served to confine the facts is equally unsustainable. It must be observed with the greatest of respect that Ms Roberts' Counsel was less than eloquent in his articulation of the case. But importantly, he did not discernibly alter the case set out in the SOFC in any way.  While it is evident that Ms Roberts' Counsel struggled to express her case clearly when questioned by the Commission, there is no part of the case that was opened that expressly resiled from her SOFC and the reliance on events pre-dating 2018. Further, there was no concession to confine the matter in the way contented for by the Regulator.
  1. The clearest and most comprehensive enunciation of the case advanced by Ms Roberts is contained in her SOFC. The SOFC plainly identifies all of the events dating back to 2007 and contends:[22]

That the injury Ms Roberts has sustained is Post Traumatic Stress Disorder, in the context of multiple traumatic situations throughout her employment with the Department.

  1. When one has regard to the exchange between Counsel for Ms Roberts and the bench that took place early in the proceedings there is a clear line of enquiry seeking to ascertain what role the events pre-dating 2018 play in the claim:[23]

COMMISSIONER: So that notwithstanding that the claim that was put in in 2019 relates to events that happened more recently in term 3 and term 4 of 2018….it is these historical events, according to the medical evidence – are these going to be identified as the sort of starting point of the PTSD?

Mr HII: That’s correct, Commissioner. 

(Emphasis added)

  1. It is the Commission that (perhaps inaccurately) describes these earlier events as 'historical events' but, contrary to the way in which that term is apparently understood by the Regulator, Counsel for Ms Roberts plainly asserts that the 'historical' events are relevant to the medical diagnosis.[24]
  1. Nothing about the opening given by Counsel for Ms Roberts or his responses to the Commission during the early part of Ms Roberts' evidence in chief diminishes the reliance on events pre-dating 2018. When regard is had to the full context of the relevant portion of the transcript, it is apparent that the entire exchange was prompted by an enquiry from the bench as to the necessity for Counsel for Ms Roberts to lead fulsome evidence on those earlier matters. The enquiry was made in a context where the Regulator, while not admitting the alleged facts, had not challenged them either. What follows in the broader context evident in the transcript is an obfuscation of the issues prompted by the responses of both parties. [25]

Regulators case identified?

  1. As I have already noted, while the responses of Counsel for Ms Roberts are less than clear, there is no statement that might be regarded as a concession or reduction of the scope of the claim. But additionally, the passive stance taken by the Regulator (who was also involved in the relevant exchange) failed to bring the fullness of Regulator's arguments clearly and directly to the attention of the Commission.
  1. The dearth of statutory or jurisprudential support for the proposition advanced by the Regulator might explain a hesitance or inability to articulate their position. But there were also statements from the Regulator that were unclear and, on reflection, incorrect. For example, in explaining the position adopted by the Regulator to allow evidence of the pre-2018 events for a limited purpose, Counsel for the Regulator said this of those earlier events:[26]

Commissioner: …but there is a question mark over why – whether they're relevant…

Mr Gray: …from the Regulator's perspective, they're not relevant, because you can't just simply delve back and go through an entire analysis of the complete work history. The Regulator is not …challenging ...what we will call the traumatic events, because they have a relevance to the diagnosed injury. The other events we say can't be accepted as part of the injury.

(Emphasis added)

  1. Ms Roberts' SOFC plainly contends that her injury is PTSD. She further (also plainly) contends there is a causal connection between her injury and the entire history of traumatic events dating back to 2007. In those circumstances (and contrary to the Regulator's assertion) in a hearing de novo the precise nature of the exercise to be undertaken is to "delve back and go through an entire analysis of the complete work history" (at least as far as 2007) and consider the causal connection of the traumatic events to the claimed injury because, (as the Regulator clearly agrees) "they have relevance to the diagnosed injury".[27]
  1. Some insight into the Regulators approach can be gleaned from an earlier comment on the record but along with that insight comes the revelation of the flawed premise upon which the Regulator's case was advanced:[28]

Mr Gray: So it's not a situation that the appellant can seek to limit the injury in the appeal. It's what's claimed in the application for assessment of a permanent impairment that’s relevant.

(Emphasis added)

  1. In keeping with its (unsupported) assertion that Ms Roberts' claim had to adhere to the strict boundaries set by the content of her s 132A application, it seems the Regulator intended to dissect the causative factors of the conditions of 'anxiety' and 'depression' that Ms Roberts had originally included in the s 132A application. So much was later confirmed by the unsuccessful attempt to tease out evidence about the individual diagnoses during cross examination of Dr Shaw.[29]
  1. This approach by the Regulator was always doomed to fail. This was so because Ms Roberts was not bound by the particulars of the claim made in the s 132A application. On the contrary, it is the SOFC that is the defining statement of Ms Roberts' claim.  Ms Roberts made no claim that anxiety and depression were part of her injury in her SOFC. Moreover, Dr Shaw had never provided any diagnosis other than PTSD. Notwithstanding this, the Regulator unsuccessfully attempted to extract a different diagnosis from Dr Shaw during cross examination.  
  1. Ultimately, Dr Shaw gave (uncontested) evidence that Ms Roberts' anxiety and depression were subsumed by her PTSD and were in fact features of her PTSD as opposed to stand alone diagnoses.[30] 
  1. If there was any confusion about the case advanced by Ms Roberts, it was not due to her pleadings in the SOFC or the opening remarks from her counsel.

Conclusion on scope of relevant facts

  1. For all of the preceding reasons, I consider that the scope of facts relevant to Ms Roberts' claim for compensation, and which are to be considered by the Commission in this appeal, are the facts set out in her SOFC i.e. from the incident in 2007 through to April 2019.
  1. It is significant to note at this juncture that the Regulator did not seek to factually challenge the stressors pertaining to the earlier traumatic events. Nor did the Regulator call any medical evidence to offset the evidence of Dr Shaw regarding the significance of those earlier events or his diagnosis generally.
  1. In those circumstances, the unchallenged evidence of Ms Roberts about the traumatic events dating back to 2007 and the uncontradicted evidence of Dr Shaw (discussed below) now makes the resolution of this appeal a rather simple matter.

Evidence for the Appellant

  1. Ms Roberts gave evidence in the proceedings and also called evidence from the following witnesses:
  • Ms Cassandra McDonald – lay witness
  • Dr Andrew Shaw – Consultant Psychiatrist;
  • Dr Chaminga Dhanapala – Senior Psychologist; and
  • Dr Charles Hur – General Practitioner.

Evidence of Ms Roberts

  1. Ms Roberts' SOFC comprehensively sets out the facts she seeks to rely on. The cross examination of the Regulator predominately focused on matters pertaining to management action and did not meaningfully challenge her account of events regarding the traumatic events, with the exception of the incident said to have occurred in April 2019.
  1. In her evidence in chief, Ms Roberts contended that she experienced the following traumatic incidents in the workplace:
  • In 2007, a student 'cocked his fist' a short distance from Ms Roberts' face and tried to punch her. When she ran away, the student chased her.[31] It was Ms Roberts' evidence that this incident stayed with her for a long time;[32]
  • In 2009, a student chased Ms Roberts down a hallway whilst swinging a baseball bat at her head.[33] Ms Roberts recalled feeling upset and fearful, and subsequently took two to three days off work;[34]
  • Around 2015 to 2016, Ms Roberts was involved in an incident whereby a student was strangling another student. She was involved in separating the students. Following this, Ms Roberts was in a room with the victim, whilst other students were outside the room, rattling on the windows yelling they were "going to get [her]";[35]
  • Also around this time, Ms Roberts was involved in an incident in which a student had an altercation with another student. Ms Roberts contends the student threw a desk, chairs and books at the student and her. The student, who she described as physically taller and stronger than her, stood over her and yelled at her;[36]
  • In term three of 2018, Ms Roberts contends a parent threatened her, stating he would use his shotgun to blow her head off, and called her other derogatory names by phone and text because a school bus would not pick his children up;[37]
  • In term four of 2018, a student attending a pop-up class at Upper Coomera Library yelled at Ms Roberts, accusing her of sexually assaulting him, invaded her personal space and threatened to punch her.[38] Ms Roberts gave evidence she felt humiliated, embarrassed, worried and scared;[39]
  • In term one of 2019, Ms Roberts contacted a parent of a student to check their engagement. Ms Roberts contends the parent said, "I'm going to cause big trouble for you". Shortly following the phone call exchange, Ms Roberts was contacted by the Minister of Education's office about a complaint.[40] Ms Roberts evidence was that she felt this was a threat, and the call made her feel like she had been "assassinated";[41] and
  • On or around 23 April 2019, during the first days of her new role, Ms Roberts supervised a small class of students with disabilities. Ms Roberts gave evidence that two students were disrespectful and disobedient of her. Ms Roberts gave evidence that the students mocked her, and one of them stood up and got in her personal space.[42] Ms Roberts' evidence was that this event this event took her back to the incident in the Upper Coomera Library.[43]
  1. In her evidence in chief, Ms Roberts contended that she experienced the following  incidents involving management in the workplace:
  • In 2016, after the end of term one, Mr Roberts worked on a short-term contract at a different high school. Ms Roberts had some difficulties with her IT setup. Ms Roberts contends that she overheard a Registrar and Ms Cash, one of the deputy principals of the school say in passing, "she must have done something really wrong to be transferred into this school under these circumstances".[44] Ms Roberts gave evidence that this made her feel like she was not welcomed or valued.[45] Ms Cash's evidence is that she did not make the statement, and she did not hear the statement;[46]
  • In term 3 of 2018 Ms Roberts says she was unreasonably refused access to leave.
  • In term three of 2018, Ms Roberts received multiple phone calls from the principal of a state high school in which Ms Roberts contends the principal verbally abused her and accused her of ruining a child's life by getting in touch with the child's father as part of trying to re-engage the student;[47]
  • In term one of 2019 Ms Roberts asked for support in her return to classroom teaching. She contends that the requisite support was declined due to budgetary constraints.
  1. Following the incident in the classroom in April 2019, Ms Roberts returned to work for approximately two days before taking sick leave.[48] Ms Roberts spoke to Ms Linda Galloway and Ms Shirley Van Zyl about reducing her timetable, however, did not raise the incident of 23 April 2019 as Ms Roberts did not feel she had an established rapport with them.[49]

Evidence of Cassandra McDonald

  1. Ms Roberts also called evidence from Ms Cassandra McDonald. Ms McDonald was, at the relevant time, a complex case manager in the Student Engagement Team in Southeast Queensland for the Department of Education.[50]
  1. Ms McDonald gave brief evidence in relation to the restructure of the Department and the reduction in the number of teachers within the student engagement team.[51]
  1. Following evidence in chief it became apparent that Ms McDonald's evidence was of little value in assisting with the matters in issue. In the circumstances it has not been further considered in this appeal.

Medical evidence

  1. Ms Roberts called evidence from three medical practitioners. Ms Roberts' medical evidence was the only medical evidence called in the proceedings.

Dr Charles Hur

  1. Dr Hur is a general practitioner. His qualifications as an expert were not in issue.
  1. Dr Hur gave evidence that Ms Roberts had been a patient of his since August 2013. Dr Hur contends that in April 2019 he noticed a change in Ms Roberts' mood and personality.[52]
  1. Dr Hur gave evidence that Ms Roberts was unable to take her mind off the events that were occurring, and that Ms Roberts perceived she was not receiving any support from her employer.[53]
  1. On 4 July 2019, Ms Roberts informed Dr Hur of her reliving an event whereby a student swung a bat at her.[54]
  1. Following an attendance on 12 December 2019, Dr Hur issued a Workers' Compensation medical certificate dated 12 December 2019, which diagnosed Ms Roberts' injury as 'PTSD from work environment'. The stated cause of injury was 'work as teacher – assault by a student'.[55]
  1. Of relevance generally with respect to Dr Hur's evidence is that when Ms Roberts attended in April 2019, she reported her distress was a consequence of a lack of support. Dr Hur recalled Ms Roberts mentioned that she was being "forced" to go to the classes where she did "not feel comfortable on her own".[56] There were no express references to the traumatic events until 4 July 2019.
  1. Dr Hur essentially acknowledged that his diagnosis of PTSD occurred after he received the report from Dr Shaw in or about September 2019, but he clearly indicated that given his lack of specialist knowledge he deferred to the opinion of Dr Shaw. He also felt (to the extent he was qualified) that Ms Roberts "fitted in with" the diagnosis. [57]

Dr Chaminga Dhanapala

  1. Ms Dhanapala is a Senior Psychologist. Her qualifications as an expert were not in issue.
  1. Ms Dhanapala's report was tendered into evidence by consent. Despite being issued with a Notice to Attend, she did not attend or give evidence for what was reported as 'cultural reasons'.[58]
  1. Notwithstanding Ms Dhanapala's refusal to comply with an order of the Commission for her attendance, the Regulator consented to her report to be tendered into evidence.[59]
  1. While I am conscious that both parties have sought to rely (albeit peripherally) on the report of Ms Dhanapala, I am not inclined to give it any weight at all. The parties were put on notice of this possible consequence.[60]
  1. Quite apart from the fact that Ms Dhanapala was not able to be questioned or challenged about her conclusions set out in her report, it is a matter of no small concern that she deliberately refused to comply with an order of the Commission for her attendance. While her reasons for non-attendance might be associated with sincerely held beliefs, the lack of any fulsome explanation for her absence leaves a number of questions unresolved.
  1. In the circumstances, I am not inclined to form any view as to the reliability of the opinions expressed in Ms Dhanapala's report, and as such I give it no weight at all.

Dr Andrew Shaw

  1. Dr Shaw is a consultant psychiatrist. His qualifications as an expert were not in issue.
  1. Dr Shaw gave evidence that he first consulted Ms Roberts on 23 September 2019. In his Report dated 25 November 2019,[61] Dr Shaw diagnosed Ms Roberts with PTSD and described the background of Ms Roberts' personal injury in the following terms:
  • Ms Roberts felt unsafe in the classroom after she was threatened by a student in April 2019;
  • She felt unsafe and unsupported by the school hierarchy;
  • An incident which occurred in 2007 in which a student chased Ms Roberts with a baseball bat. That incident was 'highly' significant, and has resulted in Ms Roberts experiencing ongoing flashbacks and nightmares;
  • There was a marked deterioration in 2018 in the context of multiple distressing incidents; and
  • The post-traumatic stress disorder from which Ms Roberts suffers arose in the context of multiple traumatic situations in her career. Her perception that she was unsupported appears to be significant, and Dr Shaw opines it is one of the reasons for her anger, which is a significant feature of her presentation.[62]
  1. In Dr Shaw's report of 13 February 2020 to WorkCover Queensland, he again confirms the diagnosis of PTSD and effectively repeats his comments from his earlier report in reference to the circumstances giving rise to the condition.  He indicates that the perceived aggression from a student in April 2019 lead to the accumulated effects Ms Roberts suffered from multiple work-related traumas becoming unbearable.[63]
  1. At page 2 of that report he says:[64]

The Post-Traumatic Stress Disorder arose in the context of multiple traumatic situations throughout her career in special education. The accumulated effects of multiple traumas related to work ultimately became unbearable for her following the perceived aggression from a student in April 2019. It was clear from her first consultation on 23 September 2019 that her Post-Traumatic Stress Disorder should be considered a workplace injury due to the multiple incidents of trauma throughout her teaching career.

  1. The report also indicates that Ms Roberts' post-traumatic stress disorder first manifested in 2019 and was not a pre-existing condition.[65]
  1. In his evidence in chief, Dr Shaw expanded on his reports. His evidence was that the index event for Ms Roberts' trauma was the incident in 2007 where Ms Roberts was chased by a student with a baseball bat. The event which led to the presentation of the injury was the incident in which a student stood up in class and Ms Roberts believed he was going to assault her.[66]
  1. Dr Shaw also stated in his evidence in chief that there were ‘a number of situations’ that had significance in relation to the diagnosis of post-traumatic stress disorder. He contends Ms Roberts feelings of being unsupported were an important part of the development of her condition.[67] Dr Shaw's evidence was that these were likely to be an exacerbating factor to the development of Ms Roberts' condition.[68]
  1. Importantly, Dr Shaw was adamant that Ms Shaw would have developed her PTSD even in the absence of the management factors.[69]
  1. According to Dr Shaw, Ms Roberts felt "unsafe in the classroom and unsupported by school hierarchy".[70] It is plain from these reports and his evidence that the complaint by Ms Roberts of feeling unsupported is very much entwined with her feeling unsafe in returning to the classroom.

Evidence for the Regulator

  1. The evidence called by the Regulator predominately dealt with matters pertaining to management action. There was no significant divergence between the parties as to the matters Ms Roberts complained of that amounted to management action and both parties broadly addressed the management action matters set out in Ms Roberts' SOFC set out above. The Regulator called numerous witnesses to address these matters.
  1. With one exception (Ms Shirley Van Zyl), I do not intend to address the evidence of the Regulator's witnesses in any detail in these reasons. To the extent that it is necessary to make a finding about management action,  I am satisfied that matters dealt with in the evidence were reasonable and conducted in a reasonable way. I will address the effect of the management action in my consideration below.

Ms Shirley Van Zyl

  1. Of all of the alleged traumatic events, the only one that met with any factual challenge was the event nominated last in the chronology. The evidence of Ms Van Zyl touches on this event said to have occurred on or about 24 April 2019, which was the point of decompensation for Ms Roberts and the date of manifestation of her PTSD (according to Dr Shaw).
  2. At the relevant time, Ms Van Zyl was employed as the head of special needs education services ('HOSE') at Balmoral State High School.[71]
  1. Relevantly, Ms Van Zyl does not recall any incidents occurring in the first two days of term, namely 23 or 24 April 2019, where Ms Roberts alleges she was exposed to an incident with two students. Moreover, she was adamant that there was no incident. [72]
  1. The contrast with Ms Roberts' evidence on this point is addressed later in these reasons.

Definition of 'injury' generally 

  1. The definition of injury contained at s 32(1) of the Act was subject to change across the period of time traversed in Ms Roberts' SOFC. Within this period there was a shorter period,[73] where the definition of injury contained in the Act required (for a psychiatric injury) that the employment be 'the major significant contributing factor'.
  1. The exclusions found at s 32(5) of the Act for psychiatric injuries caused by reasonable management action taken in a reasonable way remained consistent throughout the entire period from 2007 until 2019.
  1. Given the variation in the definitions across the relevant period, it will be necessary to identify the nature of Ms Roberts' injury and whether it occurred over a period of time (as she originally contended), or alternatively whether it arose on a precise date.

Nature of injury and date of injury

  1. Dr Shaw plainly stated that Ms Roberts' PTSD manifested in April 2019 i.e. it was not a pre-existing condition.[74] I wholly accept Dr Shaw's opinion as the definitive diagnosis in this matter. Dr Shaw has only ever regarded Ms Roberts to have a diagnosis of PTSD. Dr Hur agreed (with due deference to Dr Shaw).
  1. Further, Dr Shaw does not regard anxiety and depression as stand-alone diagnoses, but considers they are effectively features of her PTSD and subsumed by her PTSD.[75]
  1. In the circumstances, the proper characterisation of Ms Roberts injury is PTSD and it was sustained by Ms Roberts on or about 24 April 2019.
  1. Having regard to the date of injury, Ms Roberts will need to establish that her employment is 'the major' significant contributing factor.

Consideration

Introduction

  1. It is an unfortunate feature of these appeals that a proposition that is simple at the outset can sometimes be needlessly deconstructed to explore e.g. grounds for exclusion of a claim, to a point where the deconstructed parts entirely obscure the once simple point. Conversely, the over-particularising of a claim by making reference to each and every event recalled unfavourably by a claimant will equally unnecessarily prompt a forensic examination of those events to the point where the genuinely causative factors of an injury are indiscernible. There have been elements of both of these practices in this appeal.
  1. The objectively uncontroversial facts of this matter have always been that Ms Roberts was exposed to multiple traumatic events during her time as a teacher between 2007 and 2019. By September 2019, an appropriately specialised medical practitioner had diagnosed Ms Roberts as having sustained PTSD as a direct consequence of those traumatic events.
  1. There was no evidence to contradict Ms Roberts' accounts of the traumas. There was no medical evidence to contradict the diagnosis of PTSD. The matter ought to have ended there. 

Personal injury arising out of employment

  1. From the outset, Ms Roberts plainly outlined in her SOFC the traumas to which she had been exposed and identified PTSD as the consequence.
  1. An understanding of the aetiology of PTSD has long since ceased to be exclusive to medical experts. It is certainly well understood by the Commission. The particulars of Ms Roberts' claim include serious incidents where she was not only threatened with violence multiple times but was chased by a student and had a baseball bat swung menacingly close to her head. The impact of these repeated traumas unsurprisingly had a serious and compounding affect on her mental health. One hardly requires the expert opinion of Dr Shaw to make the diagnosis of PTSD in the circumstances. To the extent that it is necessary to do so, it seems there can be no doubt the personal injury suffered by Ms Roberts is PTSD.
  1. In terms of whether the injury arose out of or in the course of Ms Roberts’ employment, with one exception, the traumatic events are not disputed. Each of these arose during employment.
  1. It is noted that there was an apparent conflict in the evidence with respect to Ms Roberts' account of the incident in the classroom on 24 April 2019. While I found Ms Van Zyl to be a credible witness, I note that she was not a direct witness to the alleged event. I accept that there are some factual inconsistencies around the issue but given there is no contradiction of Ms Roberts' account of the incident on or about 24 April 2019. I am content to accept her evidence.
  1. For completeness, it ought to be noted that Dr Shaw identified no other stressors contributing to his diagnosis other than the repeated traumatic events.[76] He did give evidence about the significant nature of Ms Roberts' sense of feeling unsupported and the effect of this evidence is discussed below.
  1. Further, there was evidence about the impact of the death of Ms Roberts' father. I note that this occurred in August 2019, at a time when Ms Roberts injury had already occurred. It is therefore not relevant.
  1. The management action events particularised by Ms Roberts in her SOFC went well beyond her original claim of feeling 'unsupported'. They extended to things like not being provided with adequate resources, refusal of leave, and forced transfers etc. The contribution of these factors to Ms Roberts injury is discussed below, suffice to say they all arose out of her employment. 
  1. In all of those circumstances it can confidently be concluded that Ms Roberts sustained a personal injury in the course of her employment, namely PTSD.

The major significant contributing factor

  1. Dr Shaw confirms there are no additional factors that have contributed to the onset of Ms Roberts injury. The death of her father, while adding to her mental decline, occurred after the PTSD became manifest in April 2019.
  1. On all of the facts there can be no other conclusion other than Ms Roberts' employment was the major significant contributing factor.

Reasonable management action taken in a reasonable way

  1. Despite finding that the management action identified by Ms Roberts was, in each case, reasonable and reasonably undertaken, I do not consider that it has the effect of excluding her claim for compensation.
  1. The submission of the Regulator with respect to these matters varies but includes a submission that the Commission should accept that some aspect of these management action stressors are causally connected to the injury sustained.[77] Yet there is no medical evidence to support this.
  1. The cross examination of Dr Shaw never descended much further than to broad references to Ms Roberts feeling 'unsupported'. The factors said to be the management factors were never precisely identified by Dr Shaw in his evidence, and neither Counsel sought to have him comment on the matters identified in the SOFC.
  1. It was ultimately unclear from his evidence precisely what role the specifically nominated management factors played in the injury sustained by Ms Roberts. While I accept he did not exclude management action that left Ms Roberts feeling unsupported, Dr Shaw was never asked to comment with precision on the matters identified. The evidence of Dr Shaw, on the whole, very much attributed the PTSD to the traumatic events with the feelings of being unsupported by management being described as an exacerbation.[78] 
  1. At its highest for the Regulator, the evidence of Dr Shaw appears to conclude that the (unspecified) management action was an important contributor to "the experiences of the condition".[79] There is no evidence that those particularised factors, which I have found were reasonable management action, have any causal connection to Ms Roberts PTSD.
  1. Further the complaint by Ms Roberts of being 'unsupported' has, throughout the proceedings, been somewhat nebulous. The term is drawn from a reference to the (non-binding) particulars set out in the s 132A application. But Ms Roberts' SOFC expressly withdraws from the assertion.[80]
  1. The evidence of Dr Shaw certainly acknowledges the impact of the role of management action in respect to Ms Roberts condition. But it does not go so far as to give it the status of e.g. 'the major' significant contributing factor. It is sufficiently clear from his evidence that whatever role he considers it played, Dr Shaw regards the management action as being in some way ancillary to the traumatic events.
  1. In Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey,[81] His Honour Martin J said:

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 the Court any attempt to provide some type of formula or application of dominant cause has bene rejected. Section 32 must be applied in the 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 the 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 worker’s favour must follow. 

(Emphasis added)

  1. It is a regrettable feature of litigation of this nature that cross examination of an expert witness can sometimes have the effect of obscuring an otherwise clear opinion.  The clear theme that is distilled from every opinion expressed by Dr Shaw in his reports, is that the series of work-related traumatic events that Ms Roberts experienced between 2007 and 2019 caused her to suffer PTSD. 
  1. The Regulator, as it was entitled to do, sought to draw from Dr Shaw his opinion into the role that management action played in the development of Ms Roberts' condition. But in my view the cross examination did not elicit evidence capable of displacing or diluting Dr Shaw's opinions about the traumatic events. Having regard to his evidence as a whole, it is clear that Dr Shaw is prepared to accept that the management action had a role to play in Ms Roberts' presentation with PTSD. But I was not left with the impression from his evidence that he considered it a dominant factor.
  1. Dr Shaw's evidence to the effect that the management action was more of an 'exacerbating' factor, while somewhat inelegant, captures his sentiment as to the true role of the management action in Ms Roberts' injury. Equally so is his evidence that there is a 'fair chance' that Ms Roberts would have developed PTSD even without her feelings of being unsupported.
  1. On the basis of that evidence from Dr Shaw, I consider that the incidents of management action do not have the effect of activating s 32(5) of the Act to exclude Ms Roberts' claim.

Conclusion

  1. For all of the above reasons I consider that, as a consequence of multiple traumatic events Ms Roberts has suffered a personal injury, namely PTSD, which arose out of her employment and where her employment was the major significant contributing factor.
  1. I further consider that while the evidence supports that reasonable management action played some indiscernible role in her injury it was not sufficient to enliven s 32(5) of the Act.

Orders

  1. In all of the above circumstances I make the following Orders:
  1. The appeal is allowed.
  1. The decision of the Regulator dated 25 June 2020 is set aside and substituted with the following decision –

That Ms Roberts' claim pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld) is one for acceptance.

  1. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission. 

Footnotes

[1] Exhibit 1.

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

[3] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301.

[4] Closing submissions of the Appellant, paragraph 4.

[5] Simon Blackwood (Workers' Compensation Regulator) v Champman [2016] ICQ 11, [22], [23].

[6] Closing submissions in reply of the Appellant, paragraph 2.

[7] Closing submissions of the Respondent, paragraphs 26 to 32.

[8] [2009] ICQ 32.

[9] [2014] ICQ 027.

[10] [2014] ICQ at [3].

[11] Exhibit 3.

[12] Exhibit 3, page 1

[13] See paragraphs 5 and 6 of the Respondent’s SOFC filed 3 November 2020.

[14] T 1-15, ll 35-45.

[15] See paragraphs 107-118 of the closing submissions filed 25 October 2021.

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

[17] Blackwood v Adams [2015] ICQ 001 at [19].

[18] Carlton v Blackwood [2017] ICQ 001 at [18].

[19] Yousif v Workers’ Compensation Regulator [2017] ICQ 004 at [13]

[20] Regulator’s submissions filed 25 October 2021 at [116].

[21] See paragraphs 116-117 of the Regulators submissions filed 25 October 2021.

[22] At paragraph 11.

[23] T 1-9, ll 20-30.

[24] T 1-9, ll 40-45.

[25] T 1-9 to T 1-17

[26] T 1-15, ll 35-42.

[27] T 1-15, ll 35-42.

[28] T 1-12, ll 20-25.

[29] T 1-63, ll 35-40.

[30] T 1-66, ll 25-30.

[31] T 1-17, ll 42 – 47 – T 1-18, ll 1-42.

[32] T 1-19, ll 21-28.

[33] T 1-19, ll 30, T 1-20, ll 5- 42.

[34] T 1-20, ll 36-42.

[35] T 1-21, l 28 to T 1-23 l 21.

[36] T 1-26, ll 10-19.

[37] T 1-48, l 13 to T 1-51, l 24.

[38] T 1-51, l 28 to T 1-55, l 45.

[39] T 1-54, l 13 to T 1- 55, l 47.

[40] T 1-56, l 46 to T 1-57, l 42.

[41] T 1-57, ll 41-42; T 1-82, ll 14-21.

[42] T 1-83, l 43.

[43] T 1-88, ll 10-19.

[44] T 1-28, l 26 – T 1-29, l 35.

[45] T 1-29, ll 7-10, 27-30.

[46] T 4-56, ll 14-18; T 4-63, ll 24-27.

[47] T 1-43, l 39 to T 1-48, l -2.

[48] T 3-26, l 1-3.

[49] T 1-89, ll 21- T 1-90, ll 1-15.

[50] T 2-55, ll 14-19.

[51] T 2-64, ll 13-46.

[52] T 2-4, ll 21-32.

[53] T 2-6, ll 28-32.

[54] T 2-7, ll 40 - T 2-8, ll 1-15.

[55] Exhibit 7.

[56] T 2-11, ll 25-35.

[57] T 2-7, ll 35-40.

[58] T 1-75, ll 15-30.

[59] Exhibit 6.

[60] T 1-77, ll 35-45.

[61] Exhibit 2.

[62] Exhibit 2.

[63] Exhibit 3, page 2.

[64] Exhibit 3, page 2.

[65] Exhibit 3, page 2.

[66] T 1-62, ll 10-25.

[67] T 1-62, ll 25-40.

[68] T 1-62, ll 35-40.

[69] T 1-64, ll 30-42

[70] Exhibit 2, page 1; Exhibit 3, page 1.

[71] T 3-49, ll 12-37.

[72] T 3-66, ll 4-15.

[73] From 29 October 2013 until 30 October 2019.

[74] Exhibit 3, page 2.

[75] T 1-66, ll 25-30.

[76] Exhibit 3, page 3.

[77] See for example paragraph 151 of the Regulators submission filed 25 October 2021.

[78] T 1-62, ll 39-41.

[79] T 1-70, ll 10-25.

[80] See paragraph 16 of the Appellant’s SOFC filed 21 September 2020.

[81] [2016] ICQ 010 at [57].

Close

Editorial Notes

  • Published Case Name:

    Roberts v Workers' Compensation Regulator

  • Shortened Case Name:

    Roberts v Workers' Compensation Regulator

  • MNC:

    [2023] QIRC 76

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    06 Mar 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
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Blackwood v Mana [2014] ICQ 27
2 citations
Jump To
Cite 1 - [2014] ICQ 27
Cite 2 - [2014] ICQ 27
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Church v Workers' Compensation Regulator [2015] ICQ 31
3 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Cite 3 - [2015] ICQ 31
Q-COMP v Rowe [2009] ICQ 32
2 citations
Jump To
Cite 1 - [2009] ICQ 32
Cite 2 - [2009] ICQ 32
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Rucker v Blackwood [2014] ICQ 28
1 citation
Jump To
Cite 1 - [2014] ICQ 28
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Cite 3 - (2003) 172 QGIG 1447
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Workers' Compensation Regulator v Chapman [2016] ICQ 11
2 citations
Jump To
Cite 1 - [2016] ICQ 11
Cite 2 - [2016] ICQ 11
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.