Edmunds v Workers' Compensation Regulator - [2022] QIRC 285

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	_Edmundsv Workers' Compensation Regulator [2022] QIRC ₂₈₅
PARTIES:	Edmunds, Maree (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2020/95
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	29 July 2022
HEARING DATES:	19 and 20 October 2021
MEMBER: HEARD AT:	Power IC Townsville
ORDERS:	1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply.
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – Psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether management action reasonable – appeal dismissed
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11 and 32
CASES:	Allwood v Workers' Compensation Regulator [2017] QIRC 088 Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437 Davis v Blackwood [2014] ICQ 009 Mahaffey v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 116 Ms SB [2014] FWC 2104 O'Brien v Q-Comp (2007) 185 QGIG 383 Prizeman v Q-COMP (2005) 180 QGIG 481 Svenson v Q-COMP (2006) 181 QGIG 629 Workcover Queensland v Kehl (2002) 170 QGIG 93
APPEARANCES:	Ms M Edmunds, as self-represented Appellant Ms H Blattman of Counsel, directly instructed by the Respondent

Reasons for Decision

Ms Maree Edmunds ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') dated 29 June 2020, to reject an application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').

The Respondent rejected the Appellant's claim that she suffered a compensable psychiatric or psychological injury whilst employed by the Appellant as a security officer at Securecorp Qld Pty Ltd ('Securecorp') at the Queensland Rail ('QR') site in Flinders Street, Townsville.

The primary question to be determined in this appeal is whether the Appellant suffered an injury within the meaning of s 32 of the Act. At the date of injury, s 32 defined the meaning of an 'injury' in the following terms:

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

…
(b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…
(5)Despite subsection (1)…, injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
...

The onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that she has sustained an injury pursuant to s 32(1) of the Act and the injury is not excluded by the operation of s 32(5).

The Respondent does not dispute…

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 Edmunds v Workers' Compensation Regulator

Details

AGLC: Edmunds v Workers' Compensation Regulator [2022] QIRC 285
Case: [2022] QIRC 285
Decision Date: 29 July 2022

CaseChat Overview and Summary

The Workers' Compensation Regulator sought a review of the decision of a workers' compensation claim by the Appellant, Ms Edmunds, in the Queensland Civil and Administrative Tribunal. Ms Edmunds claimed compensation for an aggravation of a pre-existing psychological injury resulting from an interaction with her supervisor, Mr Alterator. The Regulator contested the claim, arguing that the injury was excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as it arose from reasonable management action. The court had to determine whether the injury was excluded under section 32(5) of the Act and whether the management action taken by Mr Alterator was reasonable. The court concluded that the injury arose out of the interaction between the Appellant and Mr Alterator, and that the employment was the major significant contributing factor to the injury. However, the court found that the action taken by Mr Alterator was considered 'management action' within the meaning of section 32(5) of the Act, and that it was reasonable. The court noted that management action does not have to be perfect to be considered reasonable. The Appellant did not produce sufficiently persuasive evidence to satisfy the onus on the balance of probabilities that Mr Alterator's actions were taken in an unreasonable way. The appeal was dismissed, and the decision of the Workers' Compensation Regulator was confirmed. The court ordered that the appeal was dismissed, the decision of the Workers' Compensation Regulator was confirmed, and that failing agreement on costs, it would be the subject of a further application to the Commission. The court also granted liberty to apply.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Workers' Compensation Regulator is confirmed.

3. Failing agreement on costs, to be the subject of a further application to the Commission.

4. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I also note that the relationship between the Appellant and Ms Patel was characterised by significant conflict, with the Appellant making three complaints about Ms Patel alleging harassment leading to a mediation. Both the Appellant and Ms Patel were aggrieved by Mr Alterator's role in informing management about Ms Patel's son attending work after consuming alcohol which resulted in a first and final warning for the Appellant and Ms Patel's son resigning during a disciplinary meeting.Medical evidence The Appellant's Psychiatrist, Dr John Rogers, outlined a summary of the interaction with Mr Alterator as relayed to him by the Appellant. Dr Rogers stated in his report that 'I can confirm that as an immediate response to the above incident, there was a significant deterioration in her mental state'.[30] [30] Exhibit 3. Dr Rogers gave evidence that although post-traumatic stress disorder can cause cognitive function to be impaired, in his opinion, the Appellant gave an accurate account of events to him on 9 October 2019. Dr Rogers also stated that when he saw the Appellant on 13 September 2019, ten days prior to the relevant incident, she was anxious, fearful and ruminating about tensions at work, overtime, and a situation brewing between the Appellant and her supervisor. Ms Wendy Arnold was the Appellant's treating Psychologist and outlined a similar summary of the interaction with Mr Alterator as outlined to her by the Appellant. Ms Arnold's report states that the Appellant's condition had been improving but quickly decompensated after the incident on 23 September 2019 to the point where she cannot return to work if Mr Alterator is in her work area. On the basis of the evidence of Ms Arnold and Dr Rogers, I accept that the Appellant's injury arose out of her employment and that employment was the major significant contributing factor to the injury. As outlined above, I accept that the injury arose out of the interaction between the Appellant and Mr Alterator on 23 September 2019. In considering the operation of s 32(5) of the Act in this matter, I must first determine whether this interaction is considered 'management action'. In Allwood v Workers' Compensation Regulator,[31] Deputy President O'Connor described 'management action' in the following terms:The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment………The exclusory action in s32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment…[32][31] [2017] QIRC 088.[32] Ibid [60] and [68]. The Appellant submits that the action of Mr Alterator was not 'management action' on the basis that he was her supervisor rather than her manager. The Respondent notes that it was never in issue that Mr Alterator was the Appellant's manager. The fact that Mr Alterator held the title 'supervisor' rather than 'manager' does not exclude the actions from being those of 'management'.

Decision

Reasons for decision

The Appellant contends that Mr Alterator undertook this conversation in an unreasonable way. Mr Alterator could ideally have managed these inquiries in a more methodical and ordered manner and at a time after the Appellant had returned to work. Management action does not, however, have to be perfect to be considered reasonable.[51] Mr Alterator's actions were not perfect, however the Appellant did not produce sufficiently persuasive evidence to satisfy the onus on the balance of probabilities that his actions were taken in an unreasonable way. [51] Ms SB [2014] FWC 2104. Conclusion There is insufficient evidence that Mr Alterator conducted himself in the manner asserted by the Appellant. In circumstances in which the Appellant bears the onus to prove their case, the evidence produced by the Appellant in this matter does not reach that level. For the reasons outlined above, I have determined that:(a)the Appellant sustained a personal injury in the form of an aggravation of a pre-existing psychological injury, namely, chronic complex post-traumatic stress disorder; (b)the Appellant's injury arose out of, or in the course of, her employment;(c)the Appellant's employment was the major significant contributing factor to her injury; and(d)the Appellant's injury is excluded by operation of s 32(5) of the Act as it arose as a result of the Appellant's expectations or perception of reasonable management action being taken against her. I make the following orders:1. The appeal is dismissed.2. The decision of the Workers' Compensation Regulator is confirmed.3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply.

Ratio Decidendi

Legal Principle Established

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