Dickinson v Workers' Compensation Regulator

[2019] QIRC 68

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Dickinson v Workers' Compensation Regulator [2019] QIRC 068

PARTIES:  

Dickinson, Bronwyn
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2017/119

PROCEEDING:

Objection to Witnesses – Relevance

DELIVERED ON:

13 May 2019

HEARING DATE:

13 May 2019

HEARD AT:

Brisbane

MEMBER:

Knight IC

ORDER:

1.     The evidence of Dr Jetnikoff and Dr Chau is not relevant for the purposes of the preliminary hearing to determine the date of Ms Dickinson's injury.

 CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where preliminary hearing to be held to determine date of decompensation – where respondent objects to relevance of evidence from expert witnesses who treated appellant after she visited her general practitioner.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003

Kiesouw v Workers' Compensation Regulator [2017] QIRC 064

Groos v WorkCover Queensland (2000) 165 QGIG 106.

APPEARANCES:

Mr T. O'Brien, Counsel, instructed by Ms. K. Pitt of Everingham Lawyers, for the appellant.

Mr. P.  O'Neill, Counsel, directly instructed by Ms. C. Shedden of the Workers' Compensation Regulator

Decision

1. Ms Bronwyn Dickinson ("the appellant") initially lodged an application for workers' compensation for a psychological/psychiatric injury on 10 October 2016. The Local Government Workcare Scheme ("LGW") subsequently rejected the application for compensation.

2. Ms Dickinson sought a review of LGW's decision on 6 April 2017. The Workers' Compensation Regulator ("the Regulator") confirmed the decision of the LGW to reject Ms Dickinson's application for compensation on 16 June 2017.

3. Ms Dickinson subsequently lodged an appeal in the Commission against the decision of the Regulator to reject the application for a psychological/psychiatric injury.

4. Prior to being given carriage of this matter, another Member of the Commission correctly determined there would be some utility in setting the matter down for a preliminary hearing, with the objective of accurately identifying the date of Ms Dickinson's psychological/psychiatric injury, to ensure Ms Dickinson, her representatives, the Regulator and the Commission were better able to focus on the factor's causative of her sustaining the injury.  

5. The proceedings to determine the commencement date of Ms Dickinson's psychological/psychiatric injury are set down for Friday, 17 May 2019. Both parties intend to adduce evidence from general practitioners.

6. Ahead of those proceedings, counsel for the Regulator objected to Ms Dickinson also relying on the evidence of two psychiatrists upon whom she has attended.

7. The respondent chiefly objects on the grounds of relevance.

8. The parties made oral submissions in a proceeding before me on 13 May 2019.

1. As best I understand it, counsel for Ms Dickinson maintains the views of the two psychiatrists are relevant in circumstances where it will be submitted Ms Dickinson suffered two distinct injuries during the relevant time, the first commencing on 7 July 2016 and the second commencing on 3 August 2016. Moreover, that one of the general practitioners by the name of Dr Shabani is not qualified or suitable to give an opinion insofar as it relates to the date of onset of Ms Dickinson's psychological/psychiatric injury.   

2. Counsel for the Regulator questioned the utility of the evidence of both psychiatrists in circumstances where it is submitted Ms Dickinson first attended upon her general practitioner(s) in respect of the injury which forms the basis of this appeal in the month of July (specifically, 21 July 2016), and again in August 2016, yet the consultations with her two psychiatrists took place in January 2017 and April 2019, well after the date of decompensation.

3. Counsel for the Regulator also maintains an injury does not need to be an injury under the Diagnostic and Statistical Manual of Mental Disorders (DSM) in order to amount to an injury under s 32 of the Act.

Conclusion

1. For the reasons that follow, I am not satisfied the two psychiatrists, Dr Jetnikoff and Dr Chau, could relevantly assist the Commission for the purposes of determining the date Ms Dickinson's psychological/psychiatric injury was sustained:

   ·        there is no argument between the parties that Ms Dickinson attended appointments with her general practitioner(s) in the months of July and August 2016 and reported various symptoms. During those appointments, Ms Dickinson made reference to workplace bullying and certain events which eventually formed the basis of her claim;

   ·        section 141 of the Act provides that the entitlement to compensation for an injury arises on the day the worker is assessed by:

   141 Time from which compensation payable

   (1) The entitlement to compensation for an injury arises on the day the worker is assessed by—

(a)       a doctor; or

(b)if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

(c)if the injury is an oral injury and the worker attends a dentist—the dentist.

(2) However, any entitlement to weekly payment of compensation starts on—

(a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury—the day after the worker stops work because of the injury; or

(b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury—the day the doctor, nurse practitioner or dentist assesses the injury.

(3)Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8.

(4)Subsection (2) is subject to section 131(2).

·        it is now well accepted that a workers' compensation claim involving a psychiatric or psychological condition can be accepted by WorkCover without the need to have a formal DSM IV diagnosis by a psychologist or a psychiatrist;[1] and

·        the opinions of the two psychiatrists that Ms Dickinson subsequently attended upon in January 2017 and April 2019 will be of very limited value to the Commission in circumstances where the purpose of the upcoming preliminary hearing is to identify the specific date of Ms Dickinson's decompensation.

[1] Kiesouw v Workers' Compensation Regulator [2017] QIRC 064 at [9]; Groos v WorkCover Queensland (2000) 165 QGIG 106.

1. I order accordingly.