Davis v the Workers' Compensation Regulator

Case [2019] QIRC 116

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Davis v the Workers' Compensation Regulator [2019] QIRC 116

PARTIES:  

Davis, Katie Anne
(Appellant)  

v

the Workers' Compensation Regulator
(Respondent)

CASE NO:

 WC/2017/152

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

 13 August 2019

HEARING DATES: 

23 and 24 July 2018 and
12 and 13 November 2018

20 December 2018 (Respondent's Submissions)
8 February 2019 (Appellant's Submissions)

HEARD AT:

6 March 2019 (Respondent's Reply)

Maryborough and Hervey Bay

MEMBER:

 Deputy President Bloomfield

ORDERS:

1.      1.      The Appeal is dismissed.

2.      2.      The Appellant is to pay the Respondent's          costs of, and incidental to, the Appeal.
CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where the Appellant contends she sustained a psychiatric or psychological injury during her employment - where Appellant bears the onus of proof to establish on the balance of probabilities that she sustained an injury - where purported multiple workplace concerns - where injury allegedly arose out of very specific circumstances - where statement of facts and contentions defines the nature and extent of the Appellant's case - whether the employment was the significant contributing factor to the injury - whether actions taken by management were unreasonable and/or taken in an unreasonable way - appeal dismissed.

LEGISLATION:

 Workers' Compensation and Rehabilitation Act 2003, s 32, s 550
Industrial Relations Act 2016, s 531

CASES:

APPEARANCES:

Evidence Act1977 (Qld), s 92

Eric Martin Rossmuller v Q-COMP [2010] ICQ 004

Yousif v Workers' Compensation Regulator [2017] ICQ 004

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
Bowers v Q-COMP [2002] ICQ 8
Blackwood v Mana [2014] ICQ 27

Cairns v Freeman & Ors [2008] NSWSC 792
Blackwood v Adams [2015] ICQ 001
Carlton v Blackwood [2017] ICQ 001
WorkCover Queensland v Kehl [2002] ICQ 21; 170 QGIG 93
Q-Comp v QR Limited [2011] ICQ 31

Ms J.M. Sorbello, Counsel instructed by Mr A. Land, Morton & Morton Solicitors, for the Appellant.

Mr S.A. McLeod, Counsel directly instructed by Ms C-L. Godfrey, of the Workers' Compensation Regulator, for the Respondent.

Decision

  1. This is an Appeal by Katie Anne Davis (Ms Davis/the Appellant) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the review unit of the Workers' Compensation Regulator (the Respondent) dated 25 July 2017.

  2. That decision confirmed the earlier decision of WorkCover Queensland dated 23 March 2017 to reject Ms Davis's 28 January 2016 claim for compensation in respect of a psychiatric/psychological injury said to have been sustained during her employment with PresCare in Maryborough in the period between 13 July 2015 and December 2015.

    Issue for determination

  3. The issue for determination in this Appeal is whether Ms Davis sustained an "injury" within the meaning of that term in s 32 of the Act.  The relevant legislation provides:

    32      Meaning of injury

    (1)An injury is personal injury arising out of, or in the course of, employment if -

    (a)      for an injury other than a psychiatric or psychological…

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Details
AGLC
Davis v the Workers' Compensation Regulator [2019] QIRC 116
Case
[2019] QIRC 116
Decision Date

CaseChat Overview and Summary

The case of Davis v the Workers' Compensation Regulator involved the Appellant, Katie Anne Davis, who sought to appeal a decision regarding her claim for workers' compensation. The Appellant contended that she had sustained a psychiatric or psychological injury during her employment at Groundwater Lodge, a nursing facility. The primary legal issues before the court were whether the Appellant had sustained an injury that arose out of her employment and if her employer's actions significantly contributed to this injury. The Appellant had the onus of proving these claims on the balance of probabilities.

The court examined the Appellant's evidence and submissions to determine whether her employment was the significant contributing factor to her injury and whether her employer's actions were unreasonable. The Appellant argued that multiple workplace concerns, including inadequate care plans, insufficient staffing, improper medication administration, and unsafe practices, led to her stress and subsequent psychological injury. However, the court found that the Appellant's evidence did not sufficiently establish a causal link between her employment and the alleged injury. The court also considered whether the employer's actions were unreasonable, but concluded that the Appellant's claims were not substantiated by the evidence presented.

The court ultimately dismissed the appeal, finding that the Appellant had not met her burden of proof. The decision also included an order for the Appellant to pay the Respondent's costs associated with the appeal.

Orders

Orders of the court

1. 1. The Appeal is dismissed.

2. 2. The Appellant is to pay the Respondent's costs of, and incidental to, the Appeal.

Background

Background to the litigation

Subsequently, the Appellant filed an Amended Statement of Facts and Contentions (the Amended SOFAC), which included the following headings, text and topics:. . . Background Surprisingly, given that it was prepared after the Appellant gave her oral evidence, the matters raised in the Amended SOFAC, filed on 26 September 2018, contained far more detail than that provided by Ms Davis during her examination-in-chief on 23 and 24 July 2018. In that regard, it needs to be pointed out that the contents of a SOFAC are not evidence and cannot be relied upon to support or advance a case. A SOFAC simply records what a party proposes to establish by way of fact - through evidence it will lead and through the cross-examination of the other party's witnesses - as well as the contentions, in a legal sense, it will then advance in reliance upon those facts. After the Amended SOFAC was filed, the Respondent filed an additional Statement of Facts and Contentions on 7 November 2018, to be read in conjunction with its original Statement filed in November 2017. Reflecting leave granted to it during proceedings on 12 and 13 November 2018 in Hervey Bay, the Respondent also filed a further document on the latter date which included three additional disputed facts.The Appellant's case as opened In opening the case on behalf of Ms Davis, Ms Sorbello of Counsel initially referred to the opinion of Dr Apel (as quoted above) about the nature and cause of the Appellant's psychiatric/psychological condition, and then said: The appellant will allege that the employer failed to deal with the identified issues or failed to deal adequately with the identified issues of - sorry - that there was a failure to implement and review care plans as required by clinical standards; a failure to employ sufficient staff to implement and review care plans; the incorrect administration of medication to patients; the sale of alcohol by the employer's staff to elderly patients - some of whom were on schedule 8 drugs; the purchasing of fast food by the employer's staff for elderly patients - some of whom were on controlled diets; failure by staff to monitor patients on a timely basis; unsafe lifting practices; and, a failure to remove soiled carpet in the dementia ward.The appellant will give evidence that at the time she commenced at Groundwater Lodge in July 2015, she was not authorised to take significant disciplinary action against the staff under her supervision. She will say she was permitted to have a conversation with a staff member who she identified was not performing satisfactorily but any more serious actions would be taken by the Clinical Nurse Manager, Melinda Andersen, and/or the facilities manager, Barry Murnane. The appellant will say that the employer's failure to deal with those issues in terms of the care that was provided to the residents of the facility and indeed in respect of the workplace's practices that also resulted in the staff underneath her being potentially exposed to an unsafe work environment, that she was stressed in her role as a registered nurse as to the patient's health being placed at risk, that she was stressed about the - her inability to be able to ensure that appropriate clinical standards were being maintained, and she was stressed about her exposure potentially to the risk of prosecution for failing to meet the appropriate clinical standards by the governing body for registered nurses, being AHPRA (Australian Health Practitioner Registration Agency).It will be submitted that the failure of the employer to appropriately address the deficits in the care that was being provided or to identify to the appellant the actions that the employer was taking to address care concerns identified by the appellant was unreasonable. It was unreasonable in that the appellant feared for the safety of the residents and staff under her care, was relatively powerless to press the issues resulting in the deficient care and was not given any assurance by the employer that deficient care was being addressed. Evidence

Evidence

Evidence Before The Court

In opening the case on behalf of Ms Davis, Ms Sorbello of Counsel initially referred to the opinion of Dr Apel (as quoted above) about the nature and cause of the Appellant's psychiatric/psychological condition, and then said: The appellant will allege that the employer failed to deal with the identified issues or failed to deal adequately with the identified issues of - sorry - that there was a failure to implement and review care plans as required by clinical standards; a failure to employ sufficient staff to implement and review care plans; the incorrect administration of medication to patients; the sale of alcohol by the employer's staff to elderly patients - some of whom were on schedule 8 drugs; the purchasing of fast food by the employer's staff for elderly patients - some of whom were on controlled diets; failure by staff to monitor patients on a timely basis; unsafe lifting practices; and, a failure to remove soiled carpet in the dementia ward.The appellant will give evidence that at the time she commenced at Groundwater Lodge in July 2015, she was not authorised to take significant disciplinary action against the staff under her supervision. She will say she was permitted to have a conversation with a staff member who she identified was not performing satisfactorily but any more serious actions would be taken by the Clinical Nurse Manager, Melinda Andersen, and/or the facilities manager, Barry Murnane. The appellant will say that the employer's failure to deal with those issues in terms of the care that was provided to the residents of the facility and indeed in respect of the workplace's practices that also resulted in the staff underneath her being potentially exposed to an unsafe work environment, that she was stressed in her role as a registered nurse as to the patient's health being placed at risk, that she was stressed about the - her inability to be able to ensure that appropriate clinical standards were being maintained, and she was stressed about her exposure potentially to the risk of prosecution for failing to meet the appropriate clinical standards by the governing body for registered nurses, being AHPRA (Australian Health Practitioner Registration Agency).It will be submitted that the failure of the employer to appropriately address the deficits in the care that was being provided or to identify to the appellant the actions that the employer was taking to address care concerns identified by the appellant was unreasonable. It was unreasonable in that the appellant feared for the safety of the residents and staff under her care, was relatively powerless to press the issues resulting in the deficient care and was not given any assurance by the employer that deficient care was being addressed. Evidence Evidence was provided by the following witnesses (in order of appearance):· For the Appellant:oKatie Anne Davis;oMs Vicki Hay, Administration Manager, PresCare;oLucinda Cocking, employed in 2015 at Groundwater and Yaralla as a hospitality officer, a cook and a relief hospitality supervisor;oUlrike Pearce, employed as Endorsed Enrolled Nurse in 2015 at Groundwater;oSusan Rogers, employed in an Administrative role in 2015 at Groundwater;oSandra Doran, employed as an Endorsed Enrolled Nurse in 2015 at Groundwater;oPatricia Liebke, Lead Clinical Informatics Officer, Uniting Care Health; andoDr Gregory Apel, Psychiatrist.· For the Respondent:oKathleen Hawken, Clinical Nurse, employed by PresCare during 2015, andoMelinda Andersen, employed as Clinical Nurse Manager in 2015, overseeing both Groundwater and Yaralla.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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