Deshong v Workers' Compensation Regulator - [2021] QIRC 205

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Deshong v Workers' Compensation Regulator [2021] QIRC 205
PARTIES:	Deshong, Dorothy (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2019/152
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	8 June 2021
HEARING DATES:	3 and 4 September 2020
MEMBER: HEARD AT:	Merrell DP Cairns
DATES OF WRITTEN SUBMISSIONS:	Respondent's written submissions filed on 20 January 2021 and 10 February 2021 and Appellant's submissions filed on 3 February 2021
ORDERS:	1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent is confirmed. 2. Pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003, the Appellant is to pay the Respondent's costs of the hearing.
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - appeal against review decision of the respondent - psychiatric or psychological injury - where the worker was employed as a fly in/fly out counsellor - where worker claims her injury was caused by a verbal attack by her supervisor and the failure by her employer to take action to provide her with a safe workplace upon her impending return to work - whether worker's employment was the major significant contributing factor to her injury - whether the worker's injury was withdrawn from being a compensable injury because it arose out of or in the course of reasonable management action taken in a reasonable way in connection with the worker's employment within the meaning of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 - review decision of respondent confirmed
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558
CASES:	Blackwood v Mana [2014] ICQ 027 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461 Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519 State of Queensland v Q-Comp [2010] ICQ 6 State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097 State of Queensland (Queensland Health) v Q‑Comp and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447
APPEARANCES:	Ms D. Deshong, the Appellant in person. Dr M. Brooks of Counsel directly instructed by Ms R. Jamieson of the Respondent.

Reasons for Decision
Introduction

The Apunipima Cape York Health Council ('the Health Council') is a not‑for‑profit organisation providing primary health care services in 11 communities across the Cape York region. Ms Dorothy Deshong was employed by the Health Council as a Social and Emotional Wellbeing Counsellor. Ms Deshong was employed by the Health Council from April 2017 and her position required her, as a Fly in/Fly out worker, to work in Hope Vale four days per week and to work in Cairns one day per week.
To travel to Hope Vale, the Health Council organised for Ms Deshong to fly from Cairns to Cooktown and then, on the occasions when there was no one for her to share a motor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deshong v Workers' Compensation Regulator

Details

AGLC: Deshong v Workers' Compensation Regulator [2021] QIRC 205
Case: [2021] QIRC 205
Decision Date: 8 June 2021

CaseChat Overview and Summary

In the matter of Deshong v Workers' Compensation Regulator, the court was presented with an appeal against a review decision made by the respondent, the Workers' Compensation Regulator. The appellant, Deshong, a fly-in/fly-out counsellor, claimed entitlement to workers' compensation for a psychiatric or psychological injury that she attributed to a verbal attack by her supervisor and the employer's failure to provide a safe workplace upon her return. The core dispute centred on whether Deshong's employment was a significant contributing factor to her injury and whether her injury was exempt from compensation under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003, due to being a result of reasonable management actions.

The legal issues that the court had to resolve included determining the extent to which Deshong's employment contributed to her injury and whether the injury arose from reasonable management actions taken by the employer. Specifically, the court needed to assess if the verbal attack and the employer's subsequent inaction could be categorised as reasonable management actions, thereby excluding the injury from compensable status. This involved a detailed analysis of the circumstances surrounding the events and the employer's response.

The court found that the respondent's review decision was correct. The court concluded that Deshong's employment was not the major contributing factor to her injury and that the employer's actions did not constitute reasonable management actions within the meaning of the statute. The court confirmed that the verbal attack and the employer's failure to intervene did not qualify as reasonable management actions. Consequently, the appeal was dismissed, and the respondent's decision was upheld. The court also ordered Deshong to pay the respondent's costs of the hearing, in accordance with s 558(1)(a) and s 558(3) of the Act.

Orders

Orders of the court

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent is confirmed.

2. Pursuant to s 558(3) of the Workers' Compensation and Rehabilitation Act 2003, the Appellant is to pay the Respondent's costs of the hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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