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Dodd v Workers' Compensation Regulator[2024] QIRC 273

Dodd v Workers' Compensation Regulator[2024] QIRC 273

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dodd v Workers' Compensation Regulator [2024] QIRC 273

PARTIES:

Dodd, Erin Maree

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2023/65

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

25 November 2024

HEARING DATE:

9 – 11 September 2024

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [192] of these reasons for decision.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether the Appellant's accepted physical injury was a significant contributing factor to a new psychiatric injury or an exacerbation of a preexisting psychiatric condition – whether the Appellant's injury is excluded by the operation of s 32(5)(c) of the WCRA

LEGISLATION:

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

CASES:

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Ebsworth v Workers' Compensation Regulator [2017] QIRC 28

Groos v WorkCover Queensland (2000) 165 QGIG 106

Workers' Compensation Regulator v Langerak [2020] ICQ 2

Workers' Compensation Regulator v Mahaffey [2016] ICQ 10

APPEARANCES:

Ms M Stone of Counsel, instructed by Brighton Langley Law for the Appellant.

Mr P Rashleigh of Counsel, directly instructed by the Workers' Compensation Regulator.

Reasons for Decision

  1. [1]
    The issue for determination in this matter is whether Ms Dodd's accepted neck injury ('the accepted injury') was a significant contributing factor to a new psychiatric injury or an exacerbation of a preexisting psychiatric condition.
  2. [2]
    If I find that the accepted neck injury is a significant contributing factor to the psychiatric injury, a secondary question arises: whether the psychiatric injury is excluded due to the operation of s 32(5)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCRA') on the basis that the injury arose out of, or in the course of the Regulator's or an insurer's actions in connection with the worker's application for compensation.

Background

  1. [3]
    Ms Dodd ('the Appellant') was employed as a Visual Merchandise Planogram Builder by CGL Retail Services Pty Ltd from October 2018. The nature of the work performed by Ms Dodd was physical, repetitive, and involved heavy lifting. By March 2021, Ms Dodd was experiencing pain in her right shoulder.
  1. [4]
    On 12 May 2021, Ms Dodd filed a claim for workers' compensation in relation to her shoulder injury which was accepted by WorkCover on 15 May 2021.
  1. [5]
    Over the subsequent months, the shoulder injury claim was closed and a new claim was commenced for an accepted neck injury.
  1. [6]
    Ms Dodd contends that by 19 October 2021, she had sustained a new psychiatric injury or, in the alternative, an aggravation of her pre-existing psychiatric condition, with her accepted neck injury being a significant contributing factor.[1] Specifically, Ms Dodd states that the psychiatric injury arose out of her work-related neck injury due to ongoing pain; functional limitations; inability to work; and an associated loss of income.[2] Ms Dodd also states that she was exposed to additional stressors during this time, which included her dealings with WorkCover, the breakdown of her marriage and family-related stress in respect of her children. She submits, however, that these stressors did not significantly contribute to her psychiatric injury.[3]
  1. [7]
    On 4 August 2022, Ms Dodd attended on her general practitioner ('GP') Dr Doxanakis who issued a Work Capacity Certificate that same day seeking that she have access to psychological support funded by WorkCover Queensland ('WorkCover').
  1. [8]
    The Respondent contends that any personal injury suffered by Ms Dodd was mild depression and, further, that the only significant contributing factors to that mild depression were her marriage breakdown and her dealings with WorkCover and the Regulator. The Respondent says that the marriage breakdown is not work-related.[4]
  1. [9]
    The Respondent says that even if the neck injury was a significant contributor to Ms Dodd's psychiatric injury, the injury is excluded from the meaning of injury as defined by s 32(5)(c) of the WCRA because it arises out of or in the course of action by the Regulator or an insurer, namely WorkCover, in connection with Ms Dodd's various applications for compensation.[5]

Relevant Legislation

  1. [10]
    The legislative provision relevant to this matter is s 32 of the WCRA, which states:

32  Meaning of injury

  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. However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. Injury includes the following—
  1. 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. 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. a personal injury;
  1. a disease;
  1. a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
  1. loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. 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. death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
  1. 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. 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. action by the Regulator or an insurer in connection with the worker's application for compensation.

Evidence heard by the Commission

  1. [11]
    Several witnesses gave evidence at the hearing of the matter at the Queensland Industrial Relations Commission ('the Commission'):
  • Ms Erin Dodd, the Appellant
  • Ms Celeste Harrold, friend of the Appellant
  • Ms Tracey Van Den Berg – Appellant's mother
  • Ms Sally Fuller, Appellant's treating psychologist
  • Dr Khaldoon AlSaee, Psychiatrist
  • Dr Darren Sehgal, Psychiatrist
  • Dr Chalk, Psychiatrist

Ms Dodd  - the Appellant

  1. [12]
    Ms Dodd gave evidence that ceasing work as a result of her physical injury had psychological impacts. She said that the impact was not only financial, but that she had lost her confidence, and while she was a happy person prior to her injury, she said that she was now 'not a happy person'.[6]
  1. [13]
    When asked about her attitude toward WorkCover during the period when her entitlements were cancelled and a second claim was accepted, Ms Dodd said that she felt some frustration with the process and apprehension for the future. She said that this uncertainty caused her a lot of stress, in addition to the stress she felt from being unable to work, and that it was a difficult time for her.[7] Ms Dodd said that when the Regulator ultimately accepted her application for compensation for the physical injury, she did not continue to have negative feelings toward WorkCover.[8] Ms Dodd said that the she 'understood it was a process' and it was 'not something personal to me'.[9] Ms Dodd also said that receiving psychological assistance meant that she did not have the same negative feelings towards WorkCover.
  1. [14]
    Ms Dodd identified the major stressors in her life at that time to be 'providing for my family. Knowing whether my injury would get better, whether I would be able to go back to work, whether my pain would resolve. …'.[10]
  1. [15]
    Ms Dodd said she began to see Ms Sally Fuller, a psychologist, in or around March 2022. Ms Dodd explained the reasons she was seeing Ms Fuller to be:[11]

I was dealing with lack of work, lack of financial – being able to provide for my kids financially. I was living on my own as a single mum so, yeah, the financial stress was a huge factor. I was worried that I wasn't able to provide for the – all the needs that my children – like, their school fees or – and even sometimes food. You know, we have done some really tough times. So yeah.

  1. [16]
    Ms Dodd said that she discussed these matters in her sessions with Ms Fuller but that she also talked about her relationship breakdown. Ms Dodd said that the relationship breakdown was part of her stress, but said this was in conjunction with financial pressure and 'being in pain every single day'.[12]
  1. [17]
    Ms Dodd said that during the time she started seeing Ms Fuller, she continued attending on Dr Doxanakis. Ms Dodd agreed that she would discuss the stressors in her life with her GP and recalled talking about her pain, the financial pressure she was under to provide for her children and her relationship breakdown (Ms Dodd separated from her ex-husband in November 2021).[13]
  1. [18]
    Ms Dodd said that stressors arising out of her injury affected her marriage. She said that her then-husband had placed pressure on her to maintain her pre-injury income. Furthermore, Ms Dodd said that the physical pain impacted her intimate relationship.[14]
  1. [19]
    Ms Dodd said that after the injury she struggled to perform domestic chores and that she would seek assistance from her then-husband but that he would not oblige. Ms Dodd said that her eldest child, who was 14-years old during the relevant period, helped her with domestic duties such as hanging out the washing or vacuuming and mopping the floor. Ms Dodd said that her mother would also regularly visit from Gympie to help her with these tasks.[15]
  1. [20]
    Ms Dodd said that requiring assistance with domestic chores negatively impacted her mental wellbeing as she was not accustomed to having people, including her mother and eldest child assist her with cleaning duties. Furthermore, she stated that this made her feel inadequate as she was unable to take care of her home, husband and children.[16]
  1. [21]
    Ms Dodd recalled that prior to her injury in 2021, she experienced psychological distress around 2014 to 2015 when her husband was 'going through some stuff and putting some pressure on [her]'.[17] She said that she was particularly stressed at this time and went on Effexor, which is an anxiety medication.[18] Ms Dodd said that over time, the issues with her husband resolved, and that she was able to cope. Ms Dodd said that in 2019, her husband experienced further problems and, at this time, she sought a dosage increase to her anxiety medication. Ms Dodd said that the increased dosage helped her during this time, and that those matters were resolved in 2020.[19]
  1. [22]
    Ms Dodd said that between 2020 and her physical injury in 2021, her psychological wellbeing was steady. She said that when she first became injured, she did not increase her psychiatric medicine as she was 'focussed on resolving [her] pain'.[20] Ms Dodd said that she has since increased her medication as she 'wasn't coping with everything' and that she was 'not in a good place'.[21]
  1. [23]
    Ms Dodd was asked what she meant when she said she 'wasn't coping with everything'. She said that her major stressors were the physical pain she was experiencing every day, her feelings of inadequacy and frustration with being unable to work, anxieties associated with the financial hardship she faced as a result of being unable to return to work, and some issues with her daughter.[22]
  1. [24]
    Ms Dodd said that as at the hearing, she still experienced pain from her physical injury and that her pain manifested in 'an endless cycle of frustration'.[23] Ms Dodd said that prior to her physical injury she had always been a physically capable and strong woman. She said that her injury and the impact this had on her physical capabilities damaged her confidence and that she felt lazy and worthless.[24]
  1. [25]
    Ms Dodd discussed the adaptations she has had to make to be able to perform household duties, saying she is now required to perform these tasks:[25]

in small amounts of time, spaced out, because what I experience is if I, you know, say, spend an hour or two in the garden or I mop or I'm then affected the following days afterwards by my injury. The pain exceeds and ups – ups. So it's like a – a two steps forward, three steps back

  1. [26]
    At hearing, Ms Dodd was asked about a visit to her GP, where Ms Dodd informed her that WorkCover had closed her case and were not paying benefits at that time. Ms Dodd agreed and said that she felt she still required care from her treating health practitioners at that time. She said that, at this time, she did not understand the process and that this frustrated her.[26]
  1. [27]
    Ms Dodd agreed that in September 2021 she had two-weeks off from work, and that during that time she had some relief from her pain. Ms Dodd said that the pain did not settle but was not being aggravated or triggered during this period of leave.[27] Ms Dodd was told her GP had noted, 'Had two weeks off work. Pain has really settled' and 'Just mild now. Back to work today. Worried how she will go'.[28] Ms Dodd said that she remembered being reluctant to return to work.[29]
  1. [28]
    Ms Dodd recalled that at that time she was awaiting a ruling from WorkCover regarding the cessation of her benefits. She said that she was frustrated and did not understand what was going on. On 5 October 2021, Ms Dodd told her GP that she had put in an appeal, and that it would take 25-days.[30]
  1. [29]
    Ms Dodd agreed that on 19 October 2021, her GP noted 'Still no word from Workcover (sic) on reopening case'.[31] Ms Dodd was asked if she was concerned at this time about the reopening of the case so that she could get benefits and she agreed, saying, 'Obviously, for my future. Yep. Yep'.[32]
  1. [30]
    Ms Dodd agreed that in November 2021 she told her GP that WorkCover had opened a new case and that there had been an indication it would most likely be accepted, and that she would not return to work. Ms Dodd agreed that Dr Doxanakis had noted 'has had a big impact and caused a lot of stress dealing with Workcover'.[33]
  1. [31]
    Ms Dodd was questioned about her attendance on her GP on 23 November 2021. At that visit, she had recorded that Ms Dodd was 'still awaiting word from Workcover'.[34] Ms Dodd agreed that at that time she disclosed that she had learned of her husband's affair and she disclosed that he had cheated before. During this appointment she stated that she was devastated by the affair.[35]
  1. [32]
    Ms Dodd agreed that she had a further visit to the GP on 7 December 2021 where she recorded that Ms Dodd's pain was 'a bit less' but that she was 'not doing much' and was 'still waiting for Workcover ruling.[36] Ms Dodd agreed that the delay of the WorkCover ruling had frustrated her which negatively impacted her mental wellbeing. Ms Dodd also agreed that when WorkCover denied her claim due to preexisting spondylosis, it caused her a great deal of distress, 'on top of what (she) was going through'.[37]
  1. [33]
    Ms Dodd agreed that at a visit to the GP on 10 February 2022, she discussed various stressors in her life. These stressors included her continued physical pain, her separation from her then-husband and recent move, her inability to work, the fluctuations in her mood, and her anxieties about her children. During this appointment, there was a supportive discussion and some strategies put in place for mood and self-care with a plan for regular review.[38]
  1. [34]
    On 8 March 2022, Ms Dodd's GP recorded that her pain was about the same. At this appointment, she suggested that Ms Dodd go to Providence House Psychology. She also recorded that Ms Dodd's then-husband was unfaithful, that this was not the first time, and that there had been abuse in the marriage. Ms Dodd reported that her feelings, needs and emotions were never considered by her then-husband who she described as selfish and controlling. Ms Dodd agreed she had reported that her marriage breakdown had been hard on her children. Ms Dodd agreed that at this time she was experiencing physical pain and that she had issues with her then-husband and concerns about her children's behaviour.[39]
  1. [35]
    Ms Dodd agreed that on 8 June 2022, she reported to the GP that WorkCover had reopened her case, she was still experiencing pain at night and that she was experiencing stressors associated with her marriage breakdown. Ms Dodd told the GP she was not working despite her desire to do so, and that she found pain to be a barrier.
  1. [36]
    Ms Dodd agreed that when she saw her GP on 12 July 2022, the GP completed a Work Capacity Certificate. She recorded that Ms Dodd was disheartened by the ongoing nature of the process and that her symptoms were continuing throughout this time. The GP also recorded that Ms Dodd was having ongoing stressors with her ex-husband. Ms Dodd agreed that most of her issues centred around the breakdown of her marriage.[40]
  1. [37]
    On 4 August 2022, Ms Dodd attended on her GP and stated that she was distressed. The GP recorded that Ms Dodd was seeing a physiotherapist covered by WorkCover and that while the physiotherapy had a positive impact on Ms Dodd, the anticipated timeframe for improvement was between six to 12 months. The GP recorded that 'the whole process' had significantly affected Ms Dodd's mood.[41]
  1. [38]
    In cross-examination, Ms Dodd was asked about the circumstances of her claim for psychological injury. She was taken to the Work Capacity Certificate issued on 4 August 2022 regarding her stress-related condition where her GP had written:[42]

Stress is high. Teary when I spoke to her and (sic) on the phone today as a long process with the Workcover (sic) has adversely affected her mood.

  1. [39]
    Ms Dodd was asked if the reference in Dr Doxanakis' notes to the 'whole process' was a reference to WorkCover. Ms Dodd said she believed it referred to, 'being in pain all the time, not being able to access medical help again'. Ms Dodd agreed that the WorkCover process was frustrating and stressful.[43]
  1. [40]
    However, when pressed as to whether the 'whole process' of dealing with WorkCover was a cause of her psychiatric injury, Ms Dodd disagreed. She stated that:[44]

[I] believe my whole process of my injury, my up and down in my medical support. My mental health was definitely not good at that stage or any of the stage (sic) because it was just like all these things compounding.

  1. [41]
    It was put to Ms Dodd that she reported her concerns over the WorkCover process, and not her pain during this visit to the GP. Again, Ms Dodd said, 'I feel like that might be my doctor's words, but my – my experience is the whole process is from injury to now'.[45]
  1. [42]
    It was put to Ms Dodd that her GP noted distress regarding the WorkCover process and distress related to the marriage breakdown and stressors pertaining to her children, but did not make notations about the stress caused by Ms Dodd's pain.[46] Ms Dodd recalled that she was distressed during that telehealth appointment with Dr Doxanakis because she had learned at her physiotherapy appointment '…of the length of recovery time'.[47]
  1. [43]
    On 17 August 2022, Ms Dodd attended on her GP who recorded that she was experiencing a lot of stress because of her physical pain and as a result of being unable to work and that the WorkCover process had compounded the stress. The GP also noted that Ms Dodd had again spoken about her husband being unfaithful.[48]
  1. [44]
    It was put to Ms Dodd that the primary stressors she was experiencing at this time were  issues in her personal life. Ms Dodd agreed that at that time she was dealing with 'a level of stress from [her] husband'.[49] Ms Dodd was asked if the issues with her husband, children and the WorkCover process had been causing her stress for an extended period of time. To this assertion, Ms Dodd agreed but added that her physical pain had caused her stress.[50]
  1. [45]
    Ms Dodd was taken to the notes Ms Fuller recorded on 9 May 2022, which was Ms Dodd's third psychology session.[51] In those notes, Ms Fuller wrote that Ms Dodd was in pain as her medication had run out, and had spoken about her ex-husband and children. It was suggested that while Ms Dodd was in pain and the medication had ceased, there had been an emphasis in that visit on her personal issues. Ms Dodd replied that it was generally her practice to place her children's needs ahead of her own, stating further that they were the most important part of her life.[52]
  1. [46]
    It was suggested to Ms Dodd that while she had mentioned she was experiencing pain, the purpose of counselling appeared to be her personal issues. Ms Dodd replied:[53]

My pain is something I live with every day so that's something that – like, I only have a certain amount of time with my psychologist each time and I've – you know, early on she helped me to understand that, you know, this was a process, that this wasn't personal, like, the WorkCover process. She helped me to compartmentalise that. And obviously when I was going to see her I'd have – because my appointments were sporadic, I would focus on the immediate things that were affecting my children at the time.

  1. [47]
    It was put to Ms Dodd that her pain was not really her focus, because if it was, she would have articulated that to her psychologist rather than focussing on issues with her children. Ms Dodd replied that in earlier sessions, 'we definitely talked about my pain levels' and that the pain was part of what had prompted her to pursue counselling.[54] Ms Dodd was again asked why, if pain really was a problem for her, she did not tell Ms Fuller about it and how it was affecting her. Ms Dodd replied that she does not know how Ms Fuller takes her notes, but that she knows they are brief, and so the breadth of topics Ms Dodd would have discussed would not be fully captured.[55]
  1. [48]
    Ms Dodd was taken to further notes of sessions with Ms Fuller. These session notes referred to Ms Dodd speaking about her marriage breakdown and the impact this had on her. She also spoke about her work injury and the concerns she had about her future. Namely, Ms Dodd expressed anxiety over how she would support herself moving forward.[56] Ms Dodd also spoke about her struggles as a single mother, concerns about her children and concerns about her financial security as a result of her work injuries and separation.

Ms Harold – friend of Appellant

  1. [49]
    Ms Harold said that she became aware of Ms Dodd's physical work injury in or around late August 2021 during a conversation where Ms Dodd 'told me a lot more about it, how serious it was and how it was affecting everything'.[57] Ms Harold recalled Ms Dodd telling her 'that the pain was constant'[58] and 'some days it was worse and that it just affected everything'.[59] Ms Harold said that this conversation prompted her to regularly check in with Ms Dodd.
  1. [50]
    Ms Harold also recalled Ms Dodd speaking about how she was feeling about being unable to work and not having the finances to support her family.

Ms Van Den Berg – Appellant's mother

  1. [51]
    Ms Van Den Berg said that Ms Dodd told her about the physical injury at around the time it had happened, and spoke about 'what she was going through and the pain that she had'.[60]
  1. [52]
    Ms Van Den Berg said that she had travelled to Ms Dodd's home to visit her and that she had observed that the house was 'often a bit messy and untidy', the floors needed cleaning and that sometimes washing had been done, but was not folded.[61] Ms Van Den Berg said that this was unusual as Ms Dodd had always been quite 'houseproud' and that Ms Van Den Berg could see that Ms Dodd was struggling to maintain her domestic duties during this time.
  1. [53]
    Ms Van Den Berg said that she would visit Ms Dodd and do cleaning and other household tasks that she had been unable to perform. Ms Van Den Berg said that Ms Dodd was reluctant to accept assistance, and that Ms Van Den Berg's impression was that Ms Dodd's pain was interfering with her ability to look after her family.[62]
  1. [54]
    Ms Van Den Berg said that she was aware that after the WorkCover payments had stopped, Ms Dodd's husband had placed pressure on her to return to work.[63] Ms Van Den Berg said that she continued to visit Ms Dodd and would perform household tasks that Ms Dodd was unable to do herself, as well as providing financial assistance.
  1. [55]
    Ms Van Den Berg recalled that at the time the WorkCover payments ceased, Ms Dodd 'felt like they were dismissing her pain and her injury and that she wasn't going to be able to get help for that'.[64] Ms Van Den Berg agreed that the termination of WorkCover payments formed part of Ms Dodd's concerns.[65]

Ms Sally Fuller – Appellant's treating psychologist

  1. [56]
    Ms Fuller agreed that Ms Dodd had sustained a psychological disorder by March 2022 when Ms Dodd first attended on her. Ms Fuller said that it was not possible to make a diagnosis at that point, however the referral letter from Ms Dodd's GP indicated that she suffered from an adjustment disorder. Ms Fuller said that as treatment continued, she concluded that Ms Dodd had, in fact, sustained an adjustment disorder. Ms Fuller also provided a 'Brief Report for Erin Dodd' dated 12 April 2023 in which she stated that she agreed with Dr Doxanakis that Ms Dodd had an adjustment disorder.[66]
  1. [57]
    Ms Fuller was taken to notes she had recorded during her sessions with Ms Dodd. On a number of occasions, Ms Fuller had noted that Ms Dodd had been anxious regarding her health and on one occasion that she had been, 'upset and angry about health'.[67] Ms Fuller confirmed that this was a reference to Ms Dodd's physical health.[68]
  1. [58]
    Ms Fuller was asked to identify the causes of the development of Ms Dodd's psychological disorder. Ms Fuller said that the issues were 'around an injury that she had sustained and not being able to work' and also, 'the relationship breakdown' with her then-husband.[69]
  1. [59]
    Ms Fuller was asked to comment on the significance of each of those factors. Ms Fuller said that a lot of time in a majority of the sessions was spent talking about the break-up of the relationship and the ongoing issues that this had caused. However, Ms Fuller also said there were times when Ms Dodd would talk about her physical injury.
  1. [60]
    I noted that Ms Fuller's notes included her observations that Ms Dodd was experiencing pain during their sessions. Ms Fuller explained that this notation likely reflected Ms Dodd's presentation during sessions. Ms Fuller provided an example of this, saying she would take into account whether the client looked tired or how they were sitting. Ms Fuller also said that her notation could have been prompted by asking Ms Dodd how she was feeling as she entered the consultation room and Ms Dodd stating that she was experiencing pain.[70]
  1. [61]
    Ms Fuller was asked if, as Ms Dodd's treating health professional she suffered from 'a degree of bias towards Ms Dodd'.[71] Ms Fuller said that that was a difficult question to answer and that while there is 'a level of empathy in any therapeutic relationship', she was not sure that she would characterise this as bias.[72] Ms Fuller confirmed that she accepted what Ms Dodd had told her, and that she did not attempt to test the truthfulness of what she was being told.
  1. [62]
    Ms Fuller confirmed that the majority of the sessions were in relation to the marriage breakdown and its impact on the family. She said that the pain from the injury would feature during sessions, especially if Ms Dodd had been in pain, but Ms Fuller did not consider this to be the 'main presenting problem' for Ms Dodd at the time. Ms Fuller noted that in the intake session, she was alerted to 'some sort of pain issue' and Ms Dodd had asked for strategies to better cope with her pain.[73]
  1. [63]
    On the intake form completed by Ms Dodd, in answer to the question 'What would you like to achieve by seeing a psychologist at Providence Health?', she answered, 'Strategies to cope with injury and abusive relationships'.[74]
  1. [64]
    Ms Fuller was asked if Ms Dodd ever talked about how she felt about the WorkCover process. Ms Fuller said that 'there was reference to that at some point, around the frustration around the WorkCover process but that it was not something that was the main presenting problem'.[75]
  1. [65]
    Ms Fuller concluded her evidence by agreeing that the marriage breakdown, the ongoing pain from the neck injury and the WorkCover process contributed to Ms Fuller's psychiatric injury.[76]

Dr Khaldoon AlSaee - Psychiatrist

  1. [66]
    Dr Khaldoon AlSaee prepared a report dated 5 June 2023 with respect to an assessment he performed on Ms Dodd.[77] Dr AlSaee is a Specialist Psychiatrist and Pain Medicine Physician. Dr AlSaee's report contains a table listing all the medical reports and materials available to him when undertaking his assessment of Ms Dodd. The report is extensive.
  1. [67]
    Dr AlSaee agreed that the Work Capacity Certificate issued by Ms Dodd's GP to WorkCover stated that the long process with WorkCover had adversely affected her mood.[78]
  1. [68]
    Dr AlSaee agreed that as his report focused on a WorkCover claim for a stress-related condition said to have occurred between 5 May 2021 and 4 August 2022, the matters causing stress to Ms Dodd at that time and recorded in her GP's notes were relevant. Dr AlSaee stated that it was not his practice to include every detail of the medical brief in his reports.[79]
  1. [69]
    Dr AlSaee was taken to various aspects of the GP's notes and asked if he agreed that the causes of Ms Dodd's psychiatric condition were multifactorial. Dr AlSaee agreed. It was suggested to Dr AlSaee that his report did not seem to particularly address the WorkCover process and the effect of the relationship break-up and Ms Dodd's then-husband's behaviour on her.[80]
  1. [70]
    With regard to the WorkCover stressor, Dr AlSaee said that difficulty with the WorkCover process is a common complaint from claimants.[81] With regard to Ms Dodd's relationship issues, Dr AlSaee said that the marriage was already strained, but got worse following Ms Dodd's injury. Dr AlSaee said:[82]

Unfortunately, many people have difficulties with WorkCover, and many people that are injured and in chronic pain have relationship difficulties, and I have found nothing that's out of the ordinary on this case, and I've reported on the case how I would in my normal clinical practice.

  1. [71]
    Dr AlSaee was asked to comment specifically on the factors causing the psychiatric injury as at 4 August 2022. Dr AlSaee agreed that there were three factors when the application for compensation was made. Namely, Dr AlSaee considered these factors to be pain, issues with WorkCover, and compounding issues with the relationship.[83]
  1. [72]
    It was Dr AlSaee's opinion that Ms Dodd's psychiatric injury developed over a period of time from 5 May 2021 to 4 August 2022, stating that:[84]

Initially, Ms Dodd had considered that the injury initially was benign and that she was going to recover spontaneously, but the concern was initially that the anxiety around the loss of income was the initial stress that she went through, and her condition worsened over time, rather than immediately after the physical injury. It would be something that developed over a period of time, rather than on the date when she presented on the 5th of May 2021.

  1. [73]
    Dr AlSaee also had regard to the opinion of Dr Chalk which is canvassed below from [84] of these reasons:[85]

Although I agree with Dr Chalk that the difficulties with Ms Dodd's husband have contributed to her distress, I respectfully disagree that there is no evidence of an Axis 1 Disorder, or that the stressors related to Workcover (sic) Queensland materially contributed to her illness.

  1. [74]
    With regard to the impact of WorkCover on Ms Dodd's psychiatric injury, Dr AlSaee later said:[86]

I do not believe that WorkCover Queensland mistreated Ms Dodd, nor has she suggested this in any way during the interview, despite prompting. The injury is the major contributing factor to the illness.

  1. [75]
    Having considered Ms Fuller's session notes, Dr AlSaee commented:[87]

The need for psychological therapy appears to involve two major stressors which included ongoing pain from an injury and the problems with her husband at the time. Ms Dodd explained that the focus of treatment with Ms Fuller was mainly the relationship difficulties only because she did not believe that Ms Fuller was able to address her pain complaints.

  1. [76]
    In his report, under the heading 'Diagnosis (using the Diagnostic & Statistical Manual of Mental Disorders 5th Edition)', and after discussing the physical injury and associated pain, Dr AlSaee writes:[88]

Ms Dodd also developed a constellation of depressive and anxiety symptoms resulting from the injury sustained and the consequences of the injury. This condition is a secondary psychological condition. The symptoms of depression and anxiety do not appear to meet criteria for a Major Depressive Episode or a specific anxiety disorder. There is no evidence of a co-morbid Substance Use Disorder or a General Medical Condition. I believe the residual symptoms amount to a co-morbid Adjustment Disorder with Mixed Anxiety & Depressed Mood.

  1. [77]
    Dr AlSaee reported that he believed 'the break-up in the relationship was a significant stressor during the period of claim but this has not resulted in any permanent impairment compared to the ongoing chronic pain'.[89]
  1. [78]
    Dr AlSaee also said:[90]

Ms Dodd's Adjustment Disorder results from the physical injury and this injury is the major contributing factor in causing the illness. The date the illness commenced is not clear but based on the history obtained, it would have developed over time after the injury occurred when she was struggling to cope with the physical nature of her role.

  1. [79]
    Further, Dr AlSaee states:[91]

The identifiable stressor in this case is her ongoing pain and the consequences of the pain which include functional impairment, concerns about the chronicity of the illness, concerns about financial issues, the loss of her role, her long-term employability, the fear of future need for surgery, the fear of potential paralysis, and ongoing concerns about weight gain. Given that the pain is usually a chronic concern, it is not likely that the Adjustment Disorder will resolve, hence it is a chronic Adjustment Disorder.

Dr Darren Sehgal – Psychiatrist

  1. [80]
    Dr Darren Sehgal prepared a report dated 22 November 2022 with respect to his assessment of Ms Dodd.[92] Dr Sehgal concluded that Ms Dodd had an adjustment disorder with anxiety and depression. Dr Sehgal said that according to Ms Dodd, her symptoms commenced around July 2021. Dr Sehgal said that an adjustment disorder involves various stressors which are identifiable within three-months of the onset of symptoms.[93]
  1. [81]
    Dr Sehgal said that one of the factors Ms Dodd identified was ongoing pain and discomfort.[94] Dr Sehgal said that, beyond that, Ms Dodd identified other factors including the ongoing nature of her WorkCover claim and frustration with the claim process.[95] Dr Sehgal states that other stressors included not being able to work and therefore being unable to provide finances or comfort to her children and that she had difficulties with her children involving ASD or ADD diagnoses. Dr Sehgal also said that Ms Dodd had experienced the breakdown of her 18-year relationship but that she did not identify that as a major stressor. Dr Sehgal said that Ms Dodd 'noted it was a relief for her to be out of the previous relationship'.[96] Dr Sehgal noted that Ms Dodd was predisposed to experiencing anxiety and had a history of anxiety, and that these factors, collectively, were stressors.[97]
  1. [82]
    Dr Sehgal was asked if the WorkCover process was a significant source of stress for Ms Dodd, to which he replied:[98]

It's difficult to say whether that was the most significant or not, but – but that was one of the factors, so that's what I did mention, and, ah, being difficulties, and the – the frustration of not being able to work, not being able to provide for her kids, and frustrating for her with the WorkCover and the long process through the lawyer to go through the claim.

  1. [83]
    I asked Dr Sehgal whether he agreed that there were three stressors contributing to Ms Dodd's psychiatric condition, these being the marriage breakdown, the physical injury or pain and the WorkCover process itself. Dr Sehgal agreed that these were contributing factors, but said there is a level of 'chronicity', meaning which stressor came first and how it progressed from thereon.[99]

Dr Chalk - Psychiatrist

  1. [84]
    Dr Chalk was the only witness called by the Respondent. Dr Chalk provided a report to WorkCover Queensland dated 2 September 2022 in respect of Ms Dodd.[100] Dr Chalk concluded that Ms Dodd does not have an incapacity for work because of any psychological illness.[101]
  1. [85]
    Dr Chalk was referred to the WorkCover claim summary that he had received regarding Ms Dodd and the reference therein that:[102]

Erin's injury has only been for physical injuries and recently her GP has stated that Erin's stress is high due to her dealings with WorkCover

  1. [86]
    Dr Chalk was asked whether his assessment of the factors relevant to explore with Ms Dodd were informed solely by the claim summary. Dr Chalk disagreed and said that he  had regard to the claim summary, and a history of events when making his own judgment.[103]
  1. [87]
    Dr Chalk was unable to recall whether he had access to notes taken by Ms Dodd's GP. Dr Chalk said that he did not have the records of Ms Fuller when making his report.[104]
  1. [88]
    Dr Chalk agreed that Ms Dodd had discussed her experience with pain arising out of her physical injury.[105] Dr Chalk was asked where in his report he considered Ms Dodd's pain and whether or not it contributed to the development of Ms Dodd's psychiatric injury. Dr Chalk said that in his report he listed the injury to the right shoulder and neck through repetitive work, and that Ms Dodd eventually ceased work because of that and because of ongoing pain. Dr Chalk said Ms Dodd had also told him about the treatment she has had, and about the ongoing pain in the neck, tightness in shoulders and nerve pain in the right hand. Dr Chalk said he talked to Ms Dodd about pain and took a history regarding the pain.[106]
  1. [89]
    Dr Chalk said he considered whether Ms Dodd's pain had any bearing on her psychological health and he determined that she had not developed a psychiatric illness. Dr Chalk agreed that Ms Dodd was in pain, 'Yes, I think that she – she certainly complained of ongoing pain. Pain is, clearly, a very subjective thing'.[107]
  1. [90]
    Dr Chalk was asked if he would agree that pain did have some bearing on Ms Dodd's psychological wellbeing, even if it did not rise to the level of a psychiatric condition. Dr Chalk said, 'I think that it – people who are in pain, ah, often have, um, some psychological distress as a consequence, yes'.[108] Dr Chalk said that pain was 'but one of a number of factors that – that caused her significant stress at the time'.[109]
  1. [91]
    Dr Chalk was taken through some of Ms Dodd's evidence before the Commission and some of the GP records. It was noted to Dr Chalk that the physical injury happened in May 2021 and that by 19 October 2021, Ms Dodd reported to her GP that being off work and having less money had triggered a level of anxiety and that a supportive discussion subsequently took place between Ms Dodd and her GP.
  1. [92]
    It was put to Dr Chalk that this suggested that Ms Dodd had already experienced some decompensation in her mental state by 19th October 2021. Dr Chalk disagreed and said, 'That doesn't – that doesn't suggest that at all. What it suggests is she's anxious. It doesn't mean she's decompensated'.[110]
  1. [93]
    Dr Chalk was asked if it appears that Ms Dodd was experiencing psychological symptoms that manifested in a form of anxiety as of 19 October 2021. He disagreed and said, 'No, I think the GP reports that she's anxious. I don't have a problem with that'.[111]
  1. [94]
    Dr Chalk was taken to the Mental Health Care Plan that was made by Ms Dodd's GP on 8 March 2022.[112] He was told that that written in answer to the question: 'What are the patient's current mental health issues?' was:[113]

"Relationship breakdown." And then on the next line, "Low and anxious mood." Then under – in the next box, it says Patient History. And I'll read you the full note: "Recent marriage breakdown, husband unfaithful, not the first time, also abuse in the marriage, verbal abuse, felt feelings and emotions never considered. Describes ex-partner as selfish and controlling and her needs never considered. Marriage breakdown hard on the kids. Son and daughter." It says, "Son can be aggressive. Feels like it's learned behaviour from the husband. Hard to navigate. Ongoing arm pain. Likely from neck injury at work. No longer working and WorkCover closed the case. Currently not working. No suicidal ideation. Is JW" – which I take to be Jehovah's Witness. It says, "Her faith helps. Supportive family and friends. Aware self-esteem is low and keen to improve that." And that's reflected in the GP's notes of that date as well, if you accept that from me?

  1. [95]
    Dr Chalk was then taken to the intake form completed by Ms Dodd before her first session with Ms Fuller. He was told that there was a question on the intake form, 'What would you like to achieve by seeing a psychologist at Providence House?' and the answer given was 'Strategies to cope with injury and abusive relationship'. Dr Chalk was further told that Ms Fuller had given evidence that the main focus of their sessions together was the marriage breakdown, Ms Dodd's pain, and the consequences of the pain resulting from her injury.[114]
  1. [96]
    Dr Chalk was then asked if the provision of a Mental Health Care Plan and the commencement of psychological treatment is indicative of a decompensation in Ms Dodd's psychological wellbeing and he replied, 'Sure. I don't – I don't – I wouldn't argue with that'.[115] Dr Chalk said that his report does not argue that Ms Dodd does not have an adjustment disorder, but that he does not think she has developed a psychiatric disorder because of the work injury.[116]
  1. [97]
    I asked Dr Chalk if it was possible to tease out being injured and experiencing pain from participating in the WorkCover process for the purpose of considering stressors. Dr Chalk said that was 'very difficult' and that he had done a number of assessments over time and that:[117]

what becomes apparent is when you take a history from it – from the person, it's – there's certainly a degree of emotionality that is accompanying it. If you let them sort of run the interview to a degree, it becomes apparent where the balance of the issues lie.

  1. [98]
    Furthermore, Dr Chalk said that Ms Dodd had some pain and:[118]

Some undoubted difficulties in her life. But the overriding impression that I was left with was that it was the marriage breakdown and the problems there that had been there over a long period of time. And she had a – really significant depressive symptoms over a long period of time, and that she then entered the WorkCover arena. She – that was clearly difficult. And it was all occurring at the same time as the marriage was obviously going downhill as well. She then becomes increasingly frustrated. It then becomes apparent to me that the focus of her angst, if you like, came in the actual process of the WorkCover rather than the original injury. Now, I agree with you that you can't have one without the other, but it's – it – you – you get a clear impression of the balance between the two.

  1. [99]
    I have reviewed Dr Chalk's report and it does not appear that he had the records of Ms Dodd's attendance on Dr Doxanakis or the notes taken by Ms Fuller when preparing his report.

Closing Submissions

  1. [100]
    The parties provided oral submissions at the close of the hearing.

Appellant's closing submissions[119]

  1. [101]
    Ms Dodd's representative submits that the task before the Commission revolves around three questions to be answered: first, to ascertain when the onset of the psychological injury commenced; second, to discern the contributing factors towards that injury at that time, considering their significance; and finally, to determine the effect of the overlap between the contributing factors.
  1. [102]
    The Appellant says that Ms Dodd's injury had manifested by 19 October 2021, the date that she attended upon her GP and reported that she was experiencing anxiety which she said had been brought on by being unable to work and earn an income.
  1. [103]
    The Appellant says that it is sufficient for Ms Dodd to have succumbed to her psychological symptoms at that point and to identify that there were some features of anxiety arising out of the physical injury. Further, the Appellant notes that the first time that Ms Dodd reported any stress was 6 May 2021, being the day after she had sustained the physical injury. The Appellant says that this is wholly consistent with the medical evidence which characterised the psychological injury as one that was acquired over time.
  1. [104]
    The Appellant's representative says Ms Dodd's evidence was that she was in pain from her physical injury such that by 5 May 2021 she felt compelled to seek treatment and as the pain persisted, the psychological disorder progressed to the point of decompensation.
  1. [105]
    The Appellant submits that if the Commission were to accept that date as the point in time in which contributing factors become relevant, the marriage breakdown and Ms Dodd's issues with her husband are not relevant as there had been no breakdown in the marriage at that point.
  1. [106]
    The Appellant says that any existing stress within the marital relationship was not significant to the extent that it became a significant contributing factor as at 19 October 2021. By this date, the Appellant says that the contributing factors were the physical pain that Ms Dodd had been experiencing for several months, and some dissatisfaction and frustration with WorkCover.
  1. [107]
    While acknowledging that by 19 October 2021 Ms Dodd's claim and entitlements with respect to her physical injury had been cancelled, and that Ms Dodd considered this frustrating, Ms Dodd's representatives submit that on 19 October 2021, it was the fact that she was unable to work or earn an income and her continuing pain that were the only significant contributing factors at that point. The Appellant says that regardless of whether WorkCover contributed at that point, it was not significant.
  1. [108]
    In the event I do not accept the date of injury to be 19 October 2021, the Appellant offers an alternative date of injury, being 22 March 2022. This alternative date references the date by which Ms Dodd had commenced psychology sessions with Ms Fuller.
  1. [109]
    It is submitted that having previously refused psychological treatment, by 22 March 2022, Ms Dodd had decompensated to the point that she required the intervention of a psychologist because she was not coping with her injury and the ongoing stressors related to the breakdown of her marriage.
  1. [110]
    The Appellant submits that as of 22 March 2022, the relevant significant contributing factors to the injury were the pain resulting from the physical injury and the marriage breakdown. These were the two factors which Ms Dodd had sought support to manage. The Appellant accepts that WorkCover was an issue at that point and that this caused Ms Dodd some frustration and that this factor was discussed at times with Ms Fuller as a factor contributing to the injury, the Appellant says that it does not rise to the requisite level of significance.
  1. [111]
    The Appellant says that it is only if I accept the relevant date of decompensation to be the date that the Work Capacity Certificate was issued, that the WorkCover process becomes relevant. It is only at that point that the medical records support an inference that frustrations with WorkCover had reached the point of being a significant contributing factor.
  1. [112]
    With reference to Groos,[120] the Appellant argues that it is not necessary for Ms Dodd to have a diagnosable psychiatric injury to reach the point of decompensation.
  1. [113]
    Regarding the stressor of 'pain', the Appellant says that pain itself had consequences for Ms Dodd. The Appellant says the pain affected Ms Dodd's ability to work and earn an income. Pain also affected Ms Dodd's willingness to be intimate with her then-husband which led to stress. Further, the pain adversely impacted Ms Dodd's capacity to perform tasks of daily living such as domestic chores.
  1. [114]
    The Appellant says that the Commission would accept, on the basis of the evidence, that Ms Dodd's pain was a significant contributing factor. Each of Ms Dodd's medical expert witnesses highlighted that pain was a significant contributing factor to her psychiatric condition. The Appellant notes that Dr Chalk, while not stating that pain was a significant contributor to a psychological injury, accepts that Ms Dodd was experiencing pain.
  1. [115]
    The Appellant says that to the extent Ms Dodd's relationship with her ex-husband was a contributor, as it is not work-related, it is not relevant to the appeal the subject of this decision.
  1. [116]
    With regard to the significance of action taken by WorkCover or the Regulator, the Appellant points to two decisions of the Industrial Court of Queensland ('ICQ').
  1. [117]
    The Appellant makes reference to the decision of Mahaffey,[121] as an instructive precedent for the interpretation of the purpose of the legislation and, in particular, the beneficial purpose of the legislation.
  1. [118]
    The Appellant also refers to the ICQ decision of Langerak.[122] Therein, Justice Martin addresses a situation where a psychiatric injury has arisen out of multiple causes. The Appellant says that while that matter pertained to reasonable management action rather than the actions of WorkCover, it deals with the overriding principle of whether a preclusion arises or not. The Appellant says that the authorities will lead the Commission to conclude that regardless of whether WorkCover was a contributing factor or not, the mere fact that the injury was touched by that factor does not preclude the injury itself from the meaning of 'injury' under s 32 of the WCRA.
  1. [119]
    The Appellant says that a plain reading of s 32(5) of the WCRA is that 'the disorder itself must arise out of a precluded factor', not merely that 'one of the stressors must be a precluded factor'.[123] The Appellant says that 'it is not sufficient to stop at the point that if WorkCover was a significant factor that is enough to prevent the claim from being accepted'.[124]
  1. [120]
    The Appellant's representative went on to say, with regard to Langerak:[125]

Now, what I will point out with respect to these cases is that at paragraph 86 Justice Martin says this that (sic), "The ultimate question under section 32(5)(b)" – which has to do with reasonable management action – "is whether the injury", not any one stressor, "arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employer. That being the precluding factor. The determination made in respect of section 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole evidence."

At the time that this decision was written the former iteration of section 32 was in place. And his Honour was required – or the Commissioner who determined this matter that was then appealed to Justice Martin was required to make an assessment at that time of what the major significant contributing factor is. And the line of authority that points to needing to make some assessment of whether the mere existence of WorkCover, if it's significant, whether that displaces the other contributing factors no longer applies because at the time that court was making an assessment of does WorkCover – is WorkCover significant enough that it displaces the other contributing factors tasked before the Commission was to determine the major significant contributing factor. There had to be a choice out of significant contributing factors. Which one was the major one?

You are not, likewise, burdened by that. If you find that the pain was (a) a significant contributing factor, regardless of whether action taken by WorkCover or the regulator was also a significant contributing factor, having regard to the beneficial nature of the legislation, the Commission should find that Ms Dodds' appeal is allowed because it has arisen out of circumstances which are permitted under the Act and which do meet the definition of an injury under the Act. That's the second issue.

  1. [121]
    The Appellant notes the tension between the three factors of pain, the marriage breakdown and the dealings with WorkCover which had overlapped or fed into each other in various ways. The Appellant says that regarding  the overlap, the physical pain was the first factor experienced, predating any frustration with the WorkCover process or  deterioration in the marriage. The Appellant says that the three factors, as they stand, are distinct enough for the Commission to find that the pain, frustration at the inability to work and the associated functional limitations is distinct from any frustration about WorkCover.
  1. [122]
    With regard to the expert evidence, the Appellant submits that Ms Fuller was the only person who had any capacity to directly assess Ms Dodd at the relevant time, when she was experiencing the 'crux' of her stressors.[126]
  1. [123]
    With regard to Dr Chalk's evidence, the Appellant notes that Dr Chalk was not able to make his assessment until after the date of decompensation or the date of injury. Further, the Appellant says that Dr Chalk did not have the benefit of being able to refer to medical records which might have informed his opinion and, further, that he made his assessment based solely on the day he saw Ms Dodd.
  1. [124]
    The Appellant accepts that its' witnesses, Dr AlSaee and Dr Sehgal also assessed Ms Dodd after the latest possible period for the date of injury. However, Dr AlSaee had the capacity to reflect on the medical records, and he gave evidence that he did have regard to the medical records when making his assessment of Ms Dodd. The Appellant notes that Dr AlSaee accepted the three nominated stressors as being contributing factors to the injury, though he placed more weight on the pain and the physical injury being the cause of the aetiology of Ms Dodd's disorder.[127] The Appellant also says that Dr AlSaee's comments about permanent impairment are relevant to any assessment of significance. The Appellant submits that 'adjustment disorder' is a disorder affected by stressors and the ability to adjust to those stressors. The thing that 'makes it chronic, are those stressors that have not resolved and cannot resolve. And, on the evidence, that's her pain. That's the physical injury'.[128]
  1. [125]
    The Appellant notes that Dr Chalk gave evidence that he did not dispute that Ms Dodd had an adjustment disorder.

Respondent's closing submissions[129]

  1. [126]
    The Respondent's submissions also made reference to Groos as authority that there does not need to be a diagnosis of a psychiatric injury in order to determine a date of injury.
  1. [127]
    With reference to the case of Croning,[130] the Respondent says Justice de Jersey sitting as President of the ICQ deals with what is a 'significant contributing factor' and says that there may be two or more factors which might be regarded as significant to the development of the condition and that determination of which of a number of contributing causes is significant involves a factual exercise. The Respondent says that what is required is that it needs to be a real or effective cause of the injury.
  1. [128]
    The Respondent then turned to the matter of the exclusionary provision set out in s 32(5) of the WCRA. The Respondent cites Ebsworth,[131] a 2017 decision of Industrial Commissioner Black. The Respondent says that in that decision, having looked at the explanatory notes associated with the introduction of the section, Industrial Commissioner Black said that the actions by WorkCover or the insurer included rejection of claims and cessation of entitlement.
  1. [129]
    The Respondent says that the section provides that any stress caused through the WorkCover system is not compensable if it arises out of the course of the WorkCover system, or more particularly, if it is a significant contributing factor.
  1. [130]
    The Respondent points to the medical evidence where all doctors and Ms Fuller agreed that the contributing factors to Ms Dodd's psychiatric condition are her pain and discomfort and the consequences of that; the marriage breakdown and the consequences of that regarding the children; and the issues with WorkCover.
  1. [131]
    The Respondent submits the Appellant's submission that the date of injury is 19 October 2021 is flawed given Ms Dodd's GP issued the Work Capacity Certificate on 4 August 2022. The Respondent says that if the injury arose on 19 October 2021, WorkCover has been deprived of deciding whether the claim is out of time under the timing provisions.[132]
  1. [132]
    Further, the Respondent says that all the medical expert witnesses agree that Ms Dodd's condition evolved over time and so it is impossible to discern with exactness that one date is more appropriate than another. The Respondent says the one incontestable fact is that the application for compensation was made on 4 August 2022, and that this is the date of injury for the purposes of the appeal as it was the date when the doctor certified that the Appellant needed treatment for a psychiatric condition.
  1. [133]
    The Respondent says that the medical records are 'littered' with references to the issues with WorkCover and that these start as early as 26 July 2021.[133] The Respondent points to several occasions in the GP's notes where WorkCover is mentioned and says that 'the issues with WorkCover have loomed large in this claim since early on in the claim'.[134]
  1. [134]
    Regarding the pain Ms Dodd was experiencing, the Respondent says that the pain settles at times and then reappears. The Respondent submits that the pain is not as significant in the development of the psychological injury.[135]

Consideration

Stressors

  1. [135]
    By the end of the hearing, it appeared to be settled and agreed between the parties that there were three discrete classes of stressors contributing to Ms Dodd's psychiatric condition. I will describe those as being the marriage breakdown and consequential impacts; financial or otherwise on Ms Dodd's family; the physical pain she was experiencing and the consequences of that pain (i.e. an inability to work, financial stress etc.); and finally, the WorkCover process.
  2. [136]
    In determining which, if any, was a significant contributing factor to Ms Dodd's psychiatric condition, I must first determine the date of injury, having regard to the relevant evidence as to what Ms Dodd's stressors were at the date of injury.

Date of Injury

  1. [137]
    There were three dates submitted by the parties as being the possible date of injury. These were 19 October 2021, 22 March 2022 and 4 August 2022. While I understand that 22 March 2022 was nominated as the date of injury on the basis that it was when Ms Dodd first saw Ms Fuller as she required intervention and treatment for a psychological disorder, for the reasons which follow from [138]–[142], I have determined 8 March 2022 to be the date of injury.
  1. [138]
    The Appellant's Statement of Facts and Contentions states that on 19 October 2021, Ms Dodd had been experiencing anxiety because of the pain in her right shoulder; being away from work; and losing income because she was away from work.[136] On this date, Ms Dodd attended on Dr Doxanakis and told her that her neck injury had triggered her anxiety. While the GP records this, I note that Ms Dodd had reported feeling stressed or anxious during her previous attendances on Dr Doxanakis. I also accept Dr Chalk's opinion that Ms Dodd stating she is anxious does not evidence a decompensation in her mental state, rather it suggests that she felt anxious.[137]
  1. [139]
    However, on 8 March 2022, Ms Dodd attended on Dr Doxanakis reporting that she was experiencing stress from her ongoing physical pain and other neck injury related consequences; and her marriage breakdown and the impact that this had on her family. On this day, Ms Dodd requested a referral to a psychologist, and it is on this day that Dr Doxanakis completed a Mental Health Care Plan which made explicit reference to Ms Dodd's ongoing arm pain and the breakdown of her marriage.[138]
  1. [140]
    This appears to be the date upon which Ms Dodd's mental health had deteriorated to the extent that she sought intervention and Dr Doxanakis agreed, issuing the Mental Health Care Plan. I am further assisted by Dr Chalk's evidence that 'he wouldn't argue' with the proposition that the provision of a Mental Health Care Plan and commencement of psychological treatment is indicative of a decompensation in Ms Dodd's psychological well-being.[139]
  1. [141]
    Later in March of 2022, Ms Dodd began receiving treatment from Ms Fuller for her psychiatric injury. While it is true that the Workers' Compensation Medical Certificate was not issued until 4 August 2022, it is clear that Ms Dodd had sustained the injury and commenced treatment for it prior to that date.
  1. [142]
    Having determined, on the basis of Ms Dodd's evidence, the GP records and the issuing of the Mental Health Care Plan that the date of the over period of time injury was 8 March 2022, I will not consider whether the date of injury was 4 August 2022. Whether the date of injury was 8 March 2022 or 4 August 2022 does not have a bearing on the outcome of this appeal in circumstances where, as will be discussed below, I have determined that action taken by the Regulator or an insurer in connection with Ms Dodd's application for compensation was not a significant contributing factor to her injury.

Were the nominated stressors the significant contributing factors to Ms Dodd's injury?

The marriage breakdown and consequential impact on the family

  1. [143]
    The evidence clearly demonstrates that as of 8 March 2022, Ms Dodd's marriage breakdown was a significant contributing factor to her psychiatric injury. However, as this is not a stressor related to the workplace or her physical workplace injury, it is not relevant to consider it further, other than in the context of determining if other stressors were significant contributors alongside it.

Visits to Dr Doxanankis over the period from 5 May 2021 to 8 March 2022

  1. [144]
    As I have determined the relevant date of injury to be 8 March 2022, I have considered the notes of Ms Dodd's attendances on her GP, Dr Doxanakis over the period commencing with her accepted physical injury until the date of injury, being 8 March 2022.
  1. [145]
    The date of the physical injury was 5 May 2021. Ms Dodd's GP recorded a 'work injury' and took notes about the pain Ms Dodd was experiencing and that she 'has not been sleeping much due to the pain'.[140] I have viewed the records of Ms Dodd's attendances on her GP over the period from 5 May 2021 to 8 March 2022, focusing on specific references to her pain and actions taken by WorkCover.  I have set out these extracts in the following table. The records contain some typographical errors, however, where the intended word is plainly evident, I have not replicated those errors in this table:[141]

Date of visit

Remarks in notes relevant to nominated stressors

5 May 2021

(Date of accepted injury)

work injury

right shoulder pain, worsening over the last 2+ weeks

works as a merchandiser

has been organising planograms and layouts

requires a lot of reaching, lifting and manoeuvring

thinks is overuse injury

shoulder is now very painful

shooting pain down ventral aspect of upper arm

no neck pain

no sensory disturbance

has not been sleeping much due to the pain

…

6 May 2021

Needs script for medication – run out

Effexor

A bit more stress at the moment

Trying to slow down

Happy on current dosage

Discussed considering psychologist – will think about it

12 May 2021

Shoulder maybe a little better but still a lot of ache, especially at night

examination about the same

requiring panadeine forte for sleep

saw physio, feels chiro gave more relief

for return to them if okay with WorkCover

for XRAY and USS

19 May 2021

Phone consult

ID Checked

Having USS and XRAY on Friday

improving overall, but still pain

has been having physio

WorkCover approved

for continue same duties

….

26 May 2021

…

shoulder still painful

did some house chores and was painful

examination is the same

bursitis on uss – mild

suggest HCLA injection

can go to 5 kilo lift right arm but no above shoulder work

do physio again, missed last week due to RTI

see in 1 week

2 June 2021

had HCLA injection and helped initially

went to work yesterday and assembling boxes and now a flare in pain again

required a lot of repetitive work

see letter from physio – happy with progress

good rom

but pain at extremes

also some headaches – bitemporal and tight and likely cervicogenic

no red flags

nhs neck exercises given

for reduce weight of 2 kilos now and ongoing physio

mobic

reduce in 2 weeks

16 June 2021

pain a lot less now

see letter from physio, happy with progress and would like to continue physio for strengthening

good rom

for increase to 5 kilo weight and no above shoulder work just yet

see in two weeks

30 June 2021

shoulder is more painful again

rom is good

but aches over uppr deltoid

will see physio again today - ? acupuncture

for physio and modified duties

if not starting to settle, refer for specialist opinion/MRI

14 July 2021

….

workcover review

reports shoulder is more painful also across back

no arm pain

no pleuritic pain

for come in early next week for review

will need specialist review if not settling due to long duration of symptoms

19 July 2021

…

pain again

more so upper arm than shoulder

? radiculopathy

no weakness on exam power 5/5

brisk DTR's globally

Mobic 7.5mg helps

For refer to Dr Halliday and suggest MRI

…

26 July 2021

Seeing Dr Halliday on Wednesday

pain the same

WC would not cover MRI as spine affected but can have under MC as radiculopathy

for same duties

wait review with Dr Halliday

2 August 2021

MRI C6 nerve compression

saw Dr Halliday and referred to Dr Albeitz or Dr Kahler

pain the same intermittent tends to be worse after waking or if doing repetitive work with lifting or neck movement

no weakness or sensory disturbance

for trial of Lyrica

letter to physio to commence targeted physio

work duties as per form

see at the end of next week

…

13 August 2021

workcover has closed case as now pain from neck

will see spinal surgeon and then see if will appeal

still pain, can be worse at night

no weakness

taking Lyrica at night and helps

takes at day sometimes as gets tired – aware not to drive if drowsy

no other analgesia, except for panadol

for refer for ongoing physio under epc

see surgeon on 24/8

work is allowing reduced duties

…

3 September 2021

…

is struggling at work

did a planogram and really flared the next day

pain +

has been taking 50mg Lyrica at night and 25mg mane

for continue and Mobic and panadol;

reduce work duties to no lift > 2 kilos and no lifting above shoulder and no neck recurrent flexion/extension

call to Work cover case manager – Shane James about reassessment of case

likely work has exacerbated underlying neck pathology

…

20 September 2021

had 2 weeks off work pain has really settled

just mild now

back at work today

worried how she will go

is to have NCS, was today but cancelled until later

for continue same duties as per past duties form

med cert given

await ruling from WC

see in 2 weeks

…

5 October 2021

has put in an appeal for WC last week

will take 25 business days

was to have NCS, but hard to afford

would then see surgeon after

pain settles with rest

flares with things such as vacuuming and repetitive tasks

for duties as per last duties form to work

med cert given

see in 2 weeks

…

19 October 2021

still no word from WorkCover on reopening of case

still gets pain triggered by doing things – lifting or repetitive movement of neck

not currently seeing physio, is doing exercises

will go back for some sessions, aware strengthening/rehab is very important

can return to work, suggest mainly administrative duties

limit lift to 2 kilos

no repetitive lifting or sustained neck movements

…

needs effexor script

being off work and less money has triggered anxiety

supportive discussion

see in 2 weeks

…

9 November 2021

has put in appeal

WC have opened a new case, now for neck

yet to hear if it will be accepted but indicated will be most likely

Work did not allow return to work as wanted specific forms filled out

Completed – see scanned documents

Symptoms overall less pain, but does flare with movement/lifting etc

taking Lyrica and mobic as prescribed

for once WC through is aware will need NCS and follow up with Dr Kahler as recommended and ongoing physio

has had a big impact and caused a lot of stress dealing with WC

supportive discussion

23 November 2021

still awaiting word from WC about opening new case for neck

Work has not provided any duties, so not currently working

has not seen physio, but is doing exercises

pain does settle when rests

needs Mobic and Lyrica script

is seeing Dr Kahler next week

declines referral to public physio/specialist at this stage

disclosed found out Husband is having an affair

has cheated before

devastated

going away to see her family

has supports in place

long discussion – self-care and support given

declines referral to psychologist at this stage

encourage regular review

…

7 December 2021

had NCS verbally told it was normal

will have phone consult with Dr Kahler on Thursday

pain is a bit less, but not doing much

still waiting WC ruling

is having massage and physio

discussed relationship challenges at length again today

very up and down with emotions

supportive discussion

does have good support from friends and family

declines referral to psychologist

self care and strategies for mood

see in 2 weeks

15 December 2021

Phone consult

ID checked

needs referral to Dr Kahler

phone appointment with him tomorrow

says WC has denied claim as say there is pre-existing spondylosis, but both MRI and CT say there is not

Erin will d/w Dr Kahler tomorrow

7 January 2022

…

still has pain

seeing Chiro – feels has helped more than anything else

has been to Centrelink to request a med cert

10 January 2022

Letter printed

Letter written re. Centrelink Medical Certificate (SU415)

10 February 2022

still some pain, up and down

same pain

flares when doing more

recently moved and flared the pain

taking Lyrica 25mg bd and Mobic

refer to neurologist

also refer to osip as hard to afford private physio

has separated from Husband

has moved into own unit with her children

big transition

not working now

mood up and down

some difficult days

supportive family and friends

worries about Children, especially Son who is struggling

supportive discussion

strategies for mood and self care

regular review

8 March 2022

pain about the same

has had a call for OSIP

yet to book neurologist and encouraged to do that

requests CBT

suggest Providence House Psychology

recent marriage breakdown

Husband unfaithful (not the first time)

also abuse in the marriage

verbal abuse

felt feelings and emotions never considered

…

marriage breakdown hard on the kids (Son and daughter)

…

hard to navigate

ongoing arm pain – likely from neck injury at work

no longer working and WorkCover closed the case

currently not working

no suicidal ideation

is JW, says her faith helps

Supportive family and friends

aware self esteem is low and keen to improve on that

long, supportive discussion today

refer for CBT

regular review

The pain resulting from the workplace injury and the consequences of the pain

  1. [146]
    It is accepted by the parties that Ms Dodd was experiencing pain because of her accepted injury. Ms Dodd's evidence, as well as the evidence of her friend and mother are supported by the expert medical evidence which establishes that Ms Dodd was experiencing ongoing pain. The ongoing pain impacted her mood, self-image, and happiness. Ms Dodd said she experienced feelings of inadequacy as a result of needing help to complete domestic chores. A further consequence of the pain was that Ms Dodd was unable to work, which adversely impacted her ability to financially provide for her family. Ms Dodd gave evidence to the effect that she was concerned about her ability to provide for her family, whether her pain would resolve and what her future may look like.
  1. [147]
    It was put to Ms Dodd that if her physical pain was her most significant issue, she would have discussed this in greater depth and for a longer period of time with Ms Fuller. Ms Dodd's evidence was to the effect that she had limited time with Ms Fuller and prioritised that time to talk about the marriage breakdown and issues she was experiencing with her children.[142]
  1. [148]
    Dr AlSaee's evidence was that Ms Dodd had explained to him that the focus of her sessions with Ms Fuller was on dealing with the difficulties in her relationships because Ms Dodd did not believe Ms Fuller was able to address her pain complaints.[143] I also understand Ms Dodd's evidence to be to the effect that pain was a constant background factor for her. I accept Ms Dodd's explanation in this regard. The focus on the pressing domestic and relationship issues that Ms Dodd was facing is not demonstrative of the fact that the pain arising from the workplace injury did not impact other parts of her life.
  1. [149]
    While the expert witnesses did not assess Ms Dodd until later, I note that the consensus of expert medical opinion, including Dr Chalk, was that Ms Dodd was experiencing pain.
  1. [150]
    Dr AlSaee's opinion was that Ms Dodd's need for psychological therapy appeared to have involved 'two major stressors', including the ongoing pain from the injury and the problems in her relationship.  Dr AlSaee also concluded that Ms Dodd's depressive and anxiety symptoms resulted from her injury and the consequences of the injury.[144] Ms Fuller also identified that the development of Ms Dodd's psychological disorder was caused by her injury and inability to work, and her relationship breakdown.[145]
  1. [151]
    Given the content of the GP notes and Ms Fuller's impressions and that these are contemporaneous accounts of what Ms Dodd was reporting to her treating health practitioners at the time, I have no reservations about determining that as of 8 March 2022, Ms Dodd was experiencing pain.
  1. [152]
    On 8 March 2022, the day that Dr Doxanakis prepared a Mental Health Care Plan and referred Ms Dodd to Ms Fuller, her notes state that Ms Dodd had ongoing pain which had not improved. This information appears in the Mental Health Care Plan provided to Ms Fuller. The presenting issues listed on the Plan were 'Relationship Breakdown' and 'low and anxious mood'.
  1. [153]
    While after date of injury, upon starting sessions with Ms Fuller, Ms Dodd completed an intake form in which she stated that she sought two outcomes from treatment, one being strategies to cope with her injury. Given the referral to Ms Fuller was made on the date of injury and the intake form was completed soon after, I find these records to be instructive.
  1. [154]
    I accept that the pain and consequences of the pain Ms Dodd was experiencing resulting from her accepted injury was a significant contributing factor to her psychiatric injury.

Workcover process and actions of Workcover and/or the Regulator

  1. [155]
    The parties agree that the WorkCover process was a contributing factor to Ms Dodd's psychiatric injury. The question for determination is whether this stressor rises to the level of being a significant contributor to the psychiatric injury as at the date of injury on 8 March 2022.
  1. [156]
    The bulk of the evidence regarding the WorkCover process arises from the records of Ms Dodd's GP, Dr Doxanakis, who was not called to give evidence at the hearing. The Respondent invited me to apply a Jones v Dunkel[146] inference regarding the GP not being called,[147] however I accept the Appellant's explanation that the records spoke for themselves.[148] Further, in circumstances where the Appellant does not attempt to rebut that the WorkCover process was a stressor impacting Ms Dodd, I find this explanation to be sufficient so as to not necessitate a Jones v Dunkel inference with respect to Dr Doxanakis' evidence.
  1. [157]
    The GP records leading up to the date of injury (see above from paragraph [145]), which I have determined to be 8 March 2022, making a number of references to the WorkCover process. Whether the GP elicited information about the status of Ms Dodd's claim with WorkCover prompting further discussion from Ms Dodd, or whether Ms Dodd herself initiated conversation about WorkCover remains unclear from the GP's notes.
  1. [158]
    In any case, the notations regarding WorkCover between 5 May 2021 and 8 March 2022 are reasonably matter of fact. This is not a circumstance where the notes reflect that Ms Dodd was fixated on the WorkCover process or that she was claiming that the process itself was significantly impacting her mental wellbeing. The focus of the GP appointments was the physical injury itself and the consequences of the injury, until the issues relating to Ms Dodd's relationship breakdown became significant.
  1. [159]
    It seems to me that some of the discussion regarding WorkCover in those GP appointments was in relation to treatment Ms Dodd may undertake and how this treatment would be paid for. On 9 November 2021, Ms Dodd's GP records that the WorkCover process was causing her a lot of stress, however while WorkCover is mentioned at subsequent attendances, it is not stated to be causing Ms Dodd stress. The focus of the visits was her physical injury, pain management and her marriage breakdown.
  1. [160]
    On the day that the GP wrote the referral to Ms Fuller, which I have determined to be the date of injury, she noted:[149]

pain about the same

has had a call for OSIP

yet to book neurologist and encouraged to do that

requests CBT

suggest Providence House Psychology

recent marriage breakdown

Husband unfaithful (not the first time)

also abuse in the marriage

verbal abuse

felt feelings and emotions never considered

…

marriage breakdown hard on the kids (Son and daughter)

…

hard to navigate

ongoing arm pain – likely from neck injury at work

no longer working and WorkCover closed the case

currently not working

no suicidal ideation

is JW, says her faith helps

Supportive family and friends

aware self esteem is low and keen to improve that

long, supportive discussion today

refer for CBT

regular review

Actions:

Letter to Providence House Psychology printed.

Letter printed.

Letter written re. Mental Health 2710 & 2712

Letter written to Providence House Psychology re. General Referral Letter 28/5/09.

  1. [161]
    The Mental Health Care Plan Dr Doxanakis completed on 8 March 2022 contained the content which is in bold in the above paragraph. On that Mental Health Care Plan, D Doxanakis recorded a diagnosis of 'Adjustment Disorder'.[150] The Mental Health Care Plan was sent to Providence House Psychology that same day.[151]
  1. [162]
    As has already been discussed, on 22 March 2022, Ms Dodd completed an 'intake form' when commencing treatment with Ms Fuller.[152] Relevantly, in answer to the question, 'What would you like to achieve by seeing a Psychologist at Providence House?', Ms Dodd stated, 'Strategies to cope with injury and abusive relationship'.[153]
  1. [163]
    While the sessions with Ms Fuller commenced after the date of injury, I note Ms Fuller's evidence that Ms Dodd mentioned the WorkCover process from time to time. On my interpretation of Ms Fuller's notes, it does not appear that the WorkCover process was a significant source of Ms Dodd's psychological distress.
  1. [164]
    Dr AlSaee accepted that Ms Dodd had difficulties with WorkCover, but disagreed that the stressors related to WorkCover 'materially contributed to her illness'.[154] While Dr Sehgal agreed that frustration with WorkCover was 'one of the factors' creating stress for Ms Dodd, he said it was difficult to say if involvement in the WorkCover process was 'the most significant or not'. Dr Sehgal referred to there being a 'chronicity' to the contributing factors with regard to which came first and how it progressed from thereon. Dr Sehgal did not identify which if any of the stressors was 'more significant'.[155] Neither of these expert witnesses expressed an opinion that the WorkCover process or the actions of WorkCover or the Regulator were a significant contributing factor.
  1. [165]
    While the Respondent says the medical records are 'littered with references to the WorkCover process', I cannot accept, without more compelling evidence, that those references in the records leading up until the date of injury lead to a conclusion that frustration with the WorkCover process was a significant contributing factor to Ms Dodd's psychological injury or that the injury arose out of or in the course of the WorkCover process or the actions of WorkCover.

The Work Capacity Certificate issued on 4 August 2022

  1. [166]
    I understand that the Respondent points to 4 August 2022 when the Work Capacity Certificate was issued as an important date due to the reference to WorkCover in that certificate. For completeness, I will address the reference to WorkCover in that certificate and in the information provided by the GP in response to questions from WorkCover. Even if the date of injury were 4 August 2022, I am not convinced that the reference to the WorkCover process in that Certificate and the follow up facsimile (via email) of 8 August 2022 demonstrates that the WorkCover process was a significant contributor to Ms Dodd's psychological injury.
  1. [167]
    Dr Doxanakis' notes for 4 August 2022 state the following:[156]

Phone consult

ID checked

distressed today

WC paying for physio, reports physio is very good, but anticipates a 6 to 12 month time for improvement

will not fund neuro review

the whole process has affected mood significantly

very stressed

asking if can see psychiatrist under WC

I agree, lots of distress with the whole process also lots of distress with marriage breakdown and stressors with children

requests WC funding of psychiatrist

seeing private psychologist – sally fuller providence house

supportive discussion

Actions:

Letter printed

Letter written re. QLD Work capacity certificate.

  1. [168]
    On 8 August 2022, WorkCover wrote to Dr Doxanakis seeking further information. One of the questions asked of Dr Doxanakis was to advise what Ms Dodd had reported as the cause for her requiring referral to a psychiatrist. Dr Doxanakis wrote:[157]

Erin's stress levels are high, which has caused significant anxiety and low mood. I believe the trigger was the work injury with resultant chronic pain, not working & long process with management.

  1. [169]
    Another question asked of Dr Doxanakis was whether she believed Ms Dodd's work to be a significant contributing factor to her psychological symptoms and whether, if the GP did believe work was a significant contributing factor, what causative factors Ms Dodd advised Dr Doxanakis that she was suffering from. In answer to this, Dr Doxanakis wrote:[158]

She is not currently working. However, the pain that she has had has led to her inability to work & the resultant distress of chronic pain, loss of income, coping with prolonged, stressful dealings with Workcover & poor communication with Workcover regarding her claim.

  1. [170]
    The Respondent's representative extensively questioned Ms Dodd with regard to the WorkCover process and references to it in medical reports. Ms Dodd's evidence was that, to her, the WorkCover process referred to, 'my whole process of my injury, my up and down in my medical support'.[159] It was put to Ms Dodd that when her GP made notes about WorkCover, it was with reference to the process rather than to the pain Ms Dodd was experiencing.[160] Ms Dodd replied, 'I feel like that might be my doctor's words, but my – my experience is the whole process from injury to now'.[161]
  1. [171]
    I understood the Respondent's questioning of Ms Dodd regarding the visit of 4 August 2022 and the notes taken by Dr Doxanakis and information provided in the Work Capacity Certificate to be to the effect that Ms Dodd was not mentioning anything about pain but rather that she was distressed about her marriage breakdown and the WorkCover process. I do not accept that assessment of the GP's notes. Ms Dodd may have been distressed about her marriage breakdown at that time, but she was also clearly distressed following an assessment from the physiotherapist that her injury would take six to 12 months to get better. The injury was causing her pain. Having reviewed and considered the GP's notes and the available evidence, my conclusion is that one may readily infer that the distress Ms Dodd expressed regarding the treatment and recovery time for her injury, included an implied reference to her pain and the consequences of her pain.
  1. [172]
    While Dr Chalk's opinion was that the WorkCover process was the significant contributor to her secondary injury, and that the focus of Ms Dodd's angst was the actual process of dealing with WorkCover rather than the original injury, he did not have the benefit of the contemporaneous notes of Dr Doxinakis or Ms Fuller.[162]
  1. [173]
    Further, he was instructed that Ms Dodd's GP had stated that 'Erin's stress is high due to her dealings with WorkCover'. Dr AlSaee, who did have access to the records of Dr Doxinakis and Ms Fuller, as well as his own assessment of Ms Dodd, found that WorkCover was not a significant contributing factor to the secondary injury. While acknowledging a range of stressors, Dr Sehgal was of the view that the symptoms of the adjustment disorder 'developed at the time of the injury' and developed over a period time.[163] The evidence before me, including the evidence of Dr AlSaee which I prefer on the basis that it included a more detailed history of Ms Dodd's condition, does not lead me to the same conclusion Dr Chalk reached.

Conclusion - significant contributing factors

  1. [174]
    I accept that frustration with the WorkCover process was a contributor to Ms Dodd's psychiatric condition, however I do not accept that it rises to the level of a 'significant contributing factor'.
  1. [175]
    Therefore, based on the available evidence, I am satisfied that Ms Dodd's marriage breakdown and the pain she was experiencing resulting from her accepted injury, including the consequences of that pain, are the significant contributing factors to her psychiatric condition.
  1. [176]
    This means that Ms Dodd's psychiatric injury falls within s 32 of the WCRA, in that it arose out of or in the course of work in that it is an injury secondary to the accepted physical injury.

Is the injury excluded by the operation of s 32(5)(c) of the WCRA?

  1. [177]
    Although I accept that Ms Dodd's secondary psychiatric injury has met the requirement of s 32, I must consider whether it is excluded by operation of s 32(5)(c) of the WCRA. The Respondent submits that, whether it is a significant contributor or not, to the extent that the injury in any way arose out of the WorkCover process, it should be excluded.
  1. [178]
    The Respondent referred me to Ebsworth,[164] a 2017 decision of the Commission. In that decision, Industrial Commissioner Black was required to consider whether a secondary psychiatric injury was excluded on the basis of s 32(5)(c). In determining that matter, the Commission was guided by authorities which considered reasonable management action, another exclusionary provision within s 32(5).
  1. [179]
    In Ebsworth, Industrial Commissioner Black, having considered Mahaffey, explained the approach he would take to determine an appeal which enlivened s 32(5):[165]

[86] In the subject appeal, management action is not a factor in play. Rather, the contest is between contributing factors which fall within s 32(1) of the Act on the one hand, and within s 32(5)(c) of the Act on the other hand. The requirement under s 32(1) is to establish whether the employment was the major significant contributing factor to the injury. If it is, then the determination to be made is whether the exclusionary provisions in s 32(5)(c) are enlivened. I proceed to decide the appeal by reference to the following principles:

  1. If the evidence supports a finding that the psychiatric disorder results from the employment being the major significant contributing factor, then it is necessary to examine the exclusionary provisions of s 32(5);
  1. It does not follow that an injury that is in any way touched by factors falling within s 32(5)(c) insulates the disorder from characterisation as an injury pursuant to s 32(1);
  1. The decision making process may involve the assignment of weight to the various factors which go to the creation or maintenance of a psychiatric disorder;
  1. Decision making will be aided by expert evidence which can assist in the assignment of weight;
  1. The construction of s 32 to be favoured is that a worker can suffer a compensable injury even if s 32(5)(c) factors have some causative effect;
  1. While the expression "in the course of" has typically been held to require a temporal connection, elements of causality are not excluded, and in terms of s 32(5)(c) are necessary to give efficacy to the operation of the section;
  1. The approach is not to attempt to apply a formula directed at the identification of a dominant cause, but to weigh up the factors which were found on the evidence to have given rise to the disorder;
  1. 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)(c) does not, on balance, displace the evidence in favour of the worker, then a finding in the workers favour must follow.

…

  1. [180]
    In Ebsworth, Industrial Commissioner Black ultimately accepted that the evidence demonstrated actions taken by the self-insurer constituted 'stressors of substance which would have made an important or significant contribution to the development of the appellant's disorder'.[166] He found that 'this is not a case where stressors related to the actions of the self-insurer should defer to, or can be considered insufficient to displace, any finding in the appellant's favour under s 32(1) of the Act'.[167] The Commission determined that 'the association between the actions of the self-insurer and the injury is sufficient to support a finding that the injury arose out of, or in the course of, action by the self-insurer in connection with the appellant's application for compensation'[168] and that therefore, 'had the appellant succeeded in satisfying the test laid down by s 32(1) of the Act, the appellant's injury would have been removed from s 32(1) by virtue of the operation of s 32(5)(c) of the Act'.[169]
  1. [181]
    When considering the operation of the exclusionary provisions within s 32(5), I am assisted by Martin J's decision in the matter of Langerak (where his Honour cites a number of other decisions, including Mahaffey):[170]

[77]  That submission concerns a question which has been the subject of significant consideration in this court – how does s 32(5) operate when one or more, but not all, of the stressors are found to be reasonable management action taken in a reasonable way?

[78]  The question was considered in Q-COMP v Rowe, where Hall P observed that:

"It is the effect of the decision in Q-COMP v Hohn, ibid, that a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way. However, "may" cannot be read as "must": nor may the passage be read as asserting that an Appeal Body is at liberty to allow a claimant to succeed where at least one stressor does not "… arise or occur in the course of reasonable management action taken in a reasonable way". In all such cases, the Appeal Tribunal will be required to embark upon the enquiry whether the psychological/psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way." (emphasis added)

[79]  It is not axiomatic that, because the Commissioner found that the respondent's training was inadequate, her injury did not arise out of or in the course of reasonable management action taken in a reasonable way.

[80]  Davis v Blackwood stands for the proposition that the question of whether s 32(5) is enlivened turns on the weight attributed to each factor under consideration:

"[49] The other complaints made by the appellant about the Commissioner's reasoning concerned his findings with respect to the requirement for the appellant to sit with indigenous patients and to mourn with families after the passing of patients at the hospital. The Commissioner accepted that over the course of his employment Mr Davis found aspects of his work stressful. He also found that Mr Davis discussed those aspects with Ms Forster from time to time and that she did, on some occasions, offer means by which he might cope with the stress.

[50]  This case raises the difficulty which exists when a psychiatric disorder is brought about by matters:

  1. covered by s 32(5), and
  1. other matters which are employment related, and
  1. other matters which are non-employment related.

[51] I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an "injury". In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors."

[81]  Rowe and Davis were both considered in Simon Blackwood (Workers' Compensation Regulator) v Mahaffey. The following observations were made in that decision in respect of the interaction between ss 32(1) and 32(5):

"[37]  Section 32(1) is concerned with consideration of an injury which arises out of, or in the course of, employment. In other words, it covers the whole gamut of the employment relationship. It does not confine its operation to particular aspects of the employment, rather, it emphasises that all of the employment is to be considered because an "injury" will only come within the definition "if the employment is a significant contributing factor to the injury".

[38]  A distinction can then be drawn with the provisions of s 32(5). Putting to one side s 32(5)(c), that section is concerned with "reasonable management action" which is actually taken or a worker's expectation or perception of such action. In other words, it is concerned only with a "slice" of the employment.

…

[40]  The question which arises in this case, and which has been set out above, could, if answered in the way proposed by the appellant, lead to circumstances where a worker who nominated two stressors would be denied compensation if one of those stressors was reasonable management action etc., even if the unchallenged expert evidence was that its contribution to the disorder was minimal. Similarly, the appellant's answer would also deny a worker compensation if a disorder was the result of ten stressors, each of equal importance, but where one fell within s 32(5)."

[82]  After setting out the history of cases concerning s 32(5) the following conclusion was then reached:

"[55] Where the only cause of a personal injury is reasonable management action etc. then s 32(5) will work to exclude it from the definition of "injury" in s 32(1). The difficulty, as has become painfully obvious over the years, is where a psychiatric or psychological disorder can be seen to have arisen from a mixture of actions including reasonable management action. Experience in this jurisdiction shows that it is not uncommon for psychiatric disorders to be the result of a number of factors.

…

[57]  The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied. In the cases decided in this Court any attempt to provide some type of formula or application of dominant cause has been rejected. Section 32 must be applied in 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."

[83]  Implicit in the Commissioner's reasons is an assessment that the failure to provide adequate training was a significant consideration in respect of s 32(5) that weighed against the reasonable management action taken. The Commissioner observed as follows:

"… the failure to provide an adequate level of training to Langerak on her return to the TPCC in August 2014 to ensure that she was fully prepared to undertake her designated role was a blight on the management action of the QPS particularly as there was agreement reached at the Case Management meeting of 4 August 2014, according to Dr Kahn's notes of the meeting, that stated an 'endorsed return to training as a good part of her treatment plan'. Langerak complained of inadequate training being provided and relied on the lack of such training as the reason she had failed to reach the acceptable standard in respect of 12 of 16 sample calls requiring her to meet with Hussey and Doyle in a performance review type meeting"

[84]  But the Commissioner's reasons do not, on their face, indicate that inadequate training was alone sufficient to outweigh the reasonable management action that was taken. The Commissioner held:

"[261]  There are in my view however two areas of the QPS management of Langerak's return to the TPCC on 6 August 2014 and onwards that was not reasonable management action taken in a reasonable way by the QPS in connection with Langerak's employment, that would enliven the operation of s 32(5) of the Act to not exclude her psychiatric/psychological disorder from being compensable."

[85]  It is unclear whether the Commissioner found that the two areas together meant that the respondent's injury was compensable or whether each, in isolation, was sufficient.

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

  1. [182]
    For the reasons from [155] to [163], I accept that the WorkCover process was a stressor which contributed to Ms Dodd's psychological/psychiatric injury. However, having weighed it against the other contributors and considering all of the evidence, I determined it was not a significant contributor. Ms Dodd's reporting of frustration with the WorkCover process does not serve to displace the relevant significant contributing factor to her psychological injury, being the pain arising from the accepted workplace injury and the consequences of that pain.
  1. [183]
    As Dr AlSaee observed, difficulty with the WorkCover process is a common complaint from claimants. Finding the process difficult or complaining about it does not, without more, mean that the injury should be excluded on the basis of s 32(5)(c) of the WCRA.
  1. [184]
    Each case turns on its facts. In applying the beneficial approach outlined in Langerak, I do not find that a consideration of all the evidence leads to a conclusion that the actions of the insurer or the Regulator made an important or significant contribution to Ms Dodd's disorder, such that they displace the relevant significant contributor, being the pain of the accepted injury and its precipitating consequences. In my view, the factual matrix of the case before me is not sufficiently similar to the facts before Industrial Commissioner Black in Ebsworth. This is a case where stressors related to the actions of the insurer or the Regulator should defer to a finding in Ms Dodd's favour under s 32(1) of the WRCA.
  1. [185]
    As Industrial Commissioner Black observed in Ebsworth:[171]

In the case of claims involving the development of a psychological injury secondary to a physical injury, it would not be uncommon for the formation of a psychological injury to coincide with the processing of the physical injury claim. If only a temporal association was required between the psychological injury and the processing by the insurer and the regulator of the physical injury claim, then the subsection would have the effect of excluding many claims notwithstanding any consideration of employment related matters.

  1. [186]
    I reject the assertion that expressing concern or frustration with the administrative burden and/or uncertainty associated with lodging a WorkCover claim can be deemed sufficient to exclude a worker from having a compensable injury where such concern or frustration does not rise to having made a significant contribution to the injury. In circumstances where it is accepted that pain and associated consequences of this pain occasioned by a work injury is a significant contributor to a secondary psychological injury, it is, in my view, incompatible with the object of the provision to displace this finding where the worker has aired grievances about WorkCover with their treating health practitioners.

Conclusion

  1. [187]
    For the reasons given above, I find that there were three classes of contributors to Ms Dodd's secondary injury: her relationship difficulties/marriage breakdown; the impact of the pain and the consequences of the pain she suffered resulting from the accepted injury; and her difficulties with the WorkCover process. Of these contributors, I find that only two of the three were significant contributors to her secondary injury: her relationship issues; and the pain and consequences of the pain. Of those two significant contributors, only one is relevant for the purposes of s 32(1) of the WCRA, that is the pain and consequences of the pain resulting from the accepted employment related injury.
  1. [188]
    Applying the authorities set out above, and considering the approach adopted by Industrial Commissioner Black in Ebsworth, having established that the psychiatric injury results from employment, I then turn to consideration of whether the injury is excluded on the basis of s 32(5)(c) of the WCRA as the evidence demonstrates that the WorkCover process was a contributor to the injury.
  1. [189]
    As the authorities observe, it is not the case that an injury which is touched by factors falling within s 32(5)(c) is automatically insulated from characterisation as an injury under 32(1) of the WCRA.[172] It is necessary to consider the various factors which contributed to the injury, the consideration of expert evidence, and, indeed, all available evidence.[173] As has been discussed above, I find that greater weight should be placed on the significant contributors to the injury, being Ms Dodd's marriage breakdown and the pain resulting from the accepted injury, than on the impact of the WorkCover process on Ms Dodd.
  1. [190]
    In consideration of Mahaffey, I have favoured a beneficial construction of s 32 of the WCRA to determine that Ms Dodd has suffered a compensable injury even in circumstances where s 32(5)(c) of the WCRA is enlivened for consideration.
  1. [191]
    As discussed above, I have formed a conclusion that any impact that the WorkCover process had on Ms Dodd's injury does not, on balance, displace the evidence in favour of the worker. In those circumstances, I find that the claim is one for acceptance.

Orders

  1. [192]
    I make the following orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003 (Qld):
  1. the decision of the Respondent is set aside; and
  1. another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 which is not excluded by the operation of s 32(5)(c).
  1. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Footnotes

[1] Appellant's Amended Statement of Facts and Contentions, filed in the Industrial Registry on 3 April 2024, [62].

[2] Ibid [63].

[3] Ibid [60].

[4] Respondent's Statement of Facts and Contentions filed in the Industrial Registry on 24 August 2023, [70].

[5] Ibid [69].

[6] T1-9, L46.

[7] T1-11, L4.

[8] T1-11, LL12-13.

[9] T1-11, LL15-16.

[10] T1-11, LL7-8.

[11] T1-12, LL1-6.

[12] T1-11, LL15-16.

[13] T1-11, L43.

[14] T1-13, LL1-9.

[15] T1-13, LL16-18.

[16] T1-13, LL22-24.

[17] T1-13, LL27-30.

[18] T1-13, LL32-34.

[19] T1-13-T1-14.

[20] T1-14, L24.

[21] T1-14, LL35-37.

[22] T1-14, L42.

[23] T1-14, LL46-47

[24] T1-15, L3.

[25] T1-15, LL6-9.

[26] T1-20, LL19-20.

[27] T1-20, LL28-30.

[28] T1-20, L38.

[29] T1-20, L40.

[30] T1-21, L12.

[31] T1-21, L29.

[32] T1-21, LL38-39.

[33] T1-22, L8.

[34] T1-22, L22.

[35] T1-22, LL37-39.

[36] T1-22, L46.

[37] T1-23, L19.

[38] T1-23, LL28-29.

[39] T1-23- T1-24.

[40] T1-24.

[41] T1-32; Exhibit 1, 129.

[42] Exhibit 1, 381 and 382.

[43] T1-25.

[44] T1-31, LL40-42.

[45] T1-32, LL9-10.

[46] T1-32.

[47] T1-32, LL23-24.

[48] T1-25, LL29-32.

[49] T1-25, L43.

[50] T1-25 and T1-26.

[51] Exhibit 1, 436.

[52] T1-28, T1-29.

[53] T1-28, LL25-31.

[54] T1-28

[55] T1-28, LL36-37.

[56] T1-30, LL23-24.

[57] T1-35, LL39-40.

[58] T1-35, L42.

[59] T1-36, L15.

[60] T1-41, LL21-22.

[61] T1-41, LL33-34.

[62] T1-41, LL45-46.

[63] T1-42, LL2-3.

[64] T1-43, LL26-29.

[65] T1-43, L39.

[66] Exhibit 1, 470

[67] T3-6, L41.

[68] T3-6, LL30-33.

[69] T3-7, LL16-20.

[70] T3-8 and T3-9.

[71] T3-9.

[72] T3-9.

[73] T3-11.

[74] T3-11, LL22-23; Exhibit 1 page 429.

[75] T3-10, LL20-21.

[76] T3-11.

[77] Exhibit 1, 471-499.

[78] T2-3.

[79] T2-5.

[80] T2-8, LL6-10.

[81] T2-8, LL19-20.

[82] T2-9, LL37-40.

[83] T2-10, LL16-17.

[84] T2-12, LL30-36.

[85] Exhibit 1, 486.

[86] Exhibit 1, 492

[87] Exhibit 1, 486.

[88] Exhibit 1, 489.

[89] Exhibit 1, 490.

[90] Exhibit 1, 491.

[91] Exhibit 1, 491-492.

[92] Exhibit 1, 466.

[93] T3-28, L25.

[94] T3-28, LL29-30

[95] T3-28, LL31-34.

[96] T3-28, LL41-42.

[97] T3-28, LL45-49.

[98] T3-29, LL45-49.

[99] T3-30, L36

[100] T3-15; Exhibit 1, 457-465.

[101] T3-15, LL38-39.

[102] T3-17, LL3-5.

[103] T3-17.

[104] T3-17.

[105] T3-17, LL42-43.

[106] T3-18, T3-19.

[107] T3-18, LL14-16.

[108] T3-18, LL20-22.

[109] T3-18, LL26-27.

[110] T3-19, LL42-44.

[111] T3-20, LL3-4.

[112] Exhibit 1, 367.

[113] T3-20, LL11-24.

[114] T3-20.

[115] T3-21, LL2-3.

[116] T3-21, LL12-13.

[117] T3-20, L45 – T3-21, L2.

[118] T3-22, LL3-13.

[119] T3-32 – T3-37.

[120] Groos v WorkCover Queensland (2000) 165 QGIG 106 ('Groos').

[121] Workers' Compensation Regulator v Mahaffey [2016] ICQ 10 ('Mahaffey').

[122] Workers' Compensation Regulator v Langerak [2020] ICQ 2 ('Langerak').

[123] T3-35, LL32-33.

[124] T3-35, LL35-37.

[125] T3-35, L39 – T3-36, L17.

[126] T3-36, LL40-44.

[127] T3-37 LL8-12.

[128] T3-37, LL17-19.

[129] T3-37 – T3-46.

[130] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 ('Croning').

[131] Ebsworth v Workers' Compensation Regulator [2017] QIRC 28 ('Ebsworth').

[132] T3-39, LL31-34.

[133]  T3-39, LL46-47.

[134] T3-40, LL9-10.

[135] T3-40, LL34-35.

[136] Appellant's Statement of Facts and Contentions (n 1), [29].

[137] T3-19, LL42-44.

[138] Exhibit 1, 126.

[139] T3-21, LL2-3.

[140] Exhibit 1, 110.

[141] Exhibit 1, 110–126.

[142] T1-38, LL36-39.

[143] See above at paragraph [74]; Exhibit 1, 486.

[144] See above at paragraphs [75] and [76].

[145] See above at paragraph [57].

[146] Jones v Dunkel (1959) 101 CLR 298 ('Jones v Dunkel').

[147] T3-43 LL13-31.

[148] T3-49 LL23-28.

[149] Exhibit 1, 125–126.

[150] Exhibit 1, 368.

[151] Ibid 370.

[152] Exhibit 1, 429.

[153] Ibid.

[154] See above [72].

[155] T3-30 l46-T3-31 l12.

[156] Exhibit 1, 129-130.

[157] Exhibit 1, 246

[158] Exhibit 1, 246

[159] T1-31 LL39-41.

[160] T11-31 L44 – T1-32 L9.

[161] T1-32 LL9-10.

[162] See above at [87]; T3-22, ll3-13.

 

[163] Exhibit 1, 468.

[164] T3-40.

[165] Ebsworth v Workers' Compensation Regulator [2017] QIRC 28 ('Ebsworth') (citations omitted).

[166] [92].

[167] Ibid.

[168] Ebsworth [93].

[169] Ebsworth [93].

[170] Workers' Compensation Regulator v Langerak [2020] ICQ 2 ('Langerak') (citations omitted).

[171] Ebsworth v Workers' Compensation Regulator [2017] QIRC 28 ('Ebsworth'), [82].

[172] Langerak [51] citing Davis v Blackwood.

[173] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Dodd v Workers' Compensation Regulator

  • Shortened Case Name:

    Dodd v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 273

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    25 Nov 2024

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
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Ebsworth v Workers' Compensation Regulator [2017] QIRC 28
4 citations
Jump To
Cite 1 - [2017] QIRC 28
Cite 2 - [2017] QIRC 28
Cite 3 - [2017] QIRC 28
Cite 4 - [2017] QIRC 28
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
Jones v Dunkel (1959) 101 CLR 298
1 citation
Jump To
Cite 1 - (1959) 101 CLR 298
Workers' Compensation Regulator v Langerak [2020] ICQ 2
3 citations
Jump To
Cite 1 - [2020] ICQ 2
Cite 2 - [2020] ICQ 2
Cite 3 - [2020] ICQ 2
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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