Gillan v Workers' Compensation Regulator

Case [2021] QIRC 315

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

 Gillan v Workers' Compensation Regulator [2021] QIRC 315

PARTIES:     

Gillan, Jennifer
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO.:

 WC/2019/36

PROCEEDING:

 Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

 10 September 2021

HEARING DATES: 

10 June 2020, 24 September 2020 and 25 September 2020
DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 5 February 2021 and Appellant's written submissions filed on 5 March 2021

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

1.      Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 20 February 2019, is confirmed.

2.      Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

a.       the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 20 September 2021;

b.       unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:

WORKERS' COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION - APPEAL AGAINST REVIEW DECISION - appellant employed as Operations Support Supervisor - allegation that appellant was managed unreasonably by her supervisor which resulted in an adjustment disorder - appellant made an application for workers' compensation for a psychiatric or psychological injury - decision by WorkCover Queensland to reject application - WorkCover Queensland decision confirmed by respondent on review - worker appealed against review decision of the respondent to the Queensland Industrial Relations Commission - whether appellant sustained a personal injury - whether personal injury arose out of, or in the course of, her employment or whether employment aggravated a pre-existing psychiatric or psychological injury - whether appellant's employment was the major significant contributing factor to the injury or to the aggravation of a pre-existing psychiatric or psychological injury - whether appellant's injury excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 - appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment - review decision of respondent confirmed
LEGISLATION:

Industrial Relations Act 2016, s 531

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019, s 34
CASES:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538

Avis v Workcover Queensland [2000] QIC 67; (2000) 165 QGIG 788

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356

Blackwood v Mana [2014] ICQ 027

Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461

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

Holtman v Sampson [1985] 2 Qd R 472

JBS Australia Pty Ltdv Q-COMP

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Details
AGLC
Gillan v Workers' Compensation Regulator [2021] QIRC 315
Case
[2021] QIRC 315
Decision Date

CaseChat Overview and Summary

The case of Gillan v Workers' Compensation Regulator concerned the question of whether Ms Gillan, who was employed as an Operations Support Supervisor, was entitled to workers' compensation for a psychiatric or psychological injury that she claimed arose from her employment. The dispute began when WorkCover Queensland rejected Ms Gillan's application for compensation, and the Workers' Compensation Regulator subsequently confirmed this decision on review. Ms Gillan appealed this review decision to the Queensland Industrial Relations Commission.

The central legal issues in this case were whether Ms Gillan had sustained a personal injury, whether this injury arose out of, or in the course of, her employment or if her employment had aggravated a pre-existing psychiatric condition, and whether her employment was the major significant contributing factor to her injury. Additionally, the court had to consider whether Ms Gillan's injury was excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003.

In its decision, the Queensland Industrial Relations Commission found that Ms Gillan's personal injury arose out of, or in the course of, reasonable management actions taken in a reasonable way in connection with her employment. The Commission held that there was insufficient evidence to establish that her employment was the major significant contributing factor to her injury or to the aggravation of a pre-existing psychiatric or psychological injury. The court concluded that the review decision of the Regulator was correct and, therefore, confirmed it.

Pursuant to section 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Regulator dated 20 February 2019 was confirmed. The Commission also directed the parties to exchange written submissions on the costs of the hearing by 4.00 pm on Monday, 20 September 2021, and specified that the decision on costs would be determined on the papers unless otherwise ordered.

Orders

Orders of the court

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 20 February 2019, is confirmed.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

a. the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 20 September 2021;

b. unless otherwise ordered, the decision on costs be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Regulator submits that Mr Venter's opinion should be approached with caution and given little weight because he was not briefed with any medical history or relevant factual information, had no recollection of seeing Ms Gillan in 2017 and Ms Gillan did not tell him about her prior history of depression. The Regulator further submitted that Mr Venter's authorship of letters to WorkCover, to GE and to the law firm conducting the workplace investigation, demonstrates his effort to advocate for Ms Gillan and that he was not an impartial witness capable of giving independent opinion evidence.[82][82] The Regulator's submissions, para. 90.Ms Gillan's evidence Ms Gillan's evidence was that the feelings she described to Dr Tshibangu on 13 March 2017 continued during 2017 and 2018 but '… not as bad as they were' because she was meditating at night time to try to help her sleep and was walking when feeling stressed.[83][83] T 2-21, ll 22-27. On 14 March 2017, Ms Gillan returned to see Dr Tshibangu who issued a Mental Health Plan and prescribed Temazepam to assist her sleep.[84] In accordance with the Mental Health Plan, Dr Tshibangu referred Ms Gillan to Mr Venter to help her with her anxiety and depression which resulted in her seeing Mr Venter for a series of consultations in 2017.[85] Ms Gillan agreed that Mr Venter gave her some tools, like cognitive behavioural therapy to assist her with managing her anxiety and that helped her to a degree.[86] Oddly, Mr Venter stated that he saw Ms Gillan in October 2018,[87] based on a referral from Dr Singh,[88] but did not recall consulting with Ms Gillan in March 2017.[89][84] Exhibit 1, pages 13-14 and T 2-20, ll 19-26.[85] T 2-19, ll 28-35.[86] T 2-21, ll 29-33. Ms Gillan was unsure if Mr Venter discussed those matters with her in 2017 or when he saw her later in 2018 - T 2-21, ll 35-47.[87] T 2-93, ll 38-44.[88] T 2-98, ll 45-46.[89] T 2-99, ll 6-7. When Ms Gillan consulted Dr Singh on 19 September 2018, she stated that she told Dr Singh the reason for seeing her was a:[L]ead-up to that day with all the stress and stuff from work, with all the understaffing and that - that - when I also rang WorkCover, this was - Irene wanted to know what made me go to the doctors and what this - this was all about but it was - it was a build up to the whole thing. The last day with Steve on that 18th was just the last straw that I couldn't handle any more of - of the pressures from them.[90] [90] T 2-50, ll 37-42. When asked whether she discussed any particular features of work stress that brought her in to see Dr Singh on that day, Ms Gillan stated that she discussed being understaffed at work, the extra workload she was doing, the pressures between 'Melissa and Steve' (Ms Price and Mr Blencowe) and the way that management had been speaking to them as a whole and individually.[91][91] T 2-51, ll 12-19. Ms Gillan then confirmed what she said to a WorkCover officer during a telephone conversation on 27 September 2018,[92] as recorded by the WorkCover officer and set out in Exhibit 3. Ms Gillan stated that:·what caused her to see her doctor on 19 September 2018 was that over the last eight months they had been really understaffed and everyone was feeling a lot of pressure and stress;[93]·on 18 September 2018, Mr Blencowe was leaving to go to China and she wanted to discuss staffing issues with him before he left because he had moved one of her colleagues without her knowing and that she (Ms Gillan) should have been notified about the process, however, Mr Blencowe just brushed off her concerns;[94]·Ms Price was Mr Blencowe's wife and she was also Ms Gillan's backup when Ms Gillan was not present;[95] and·there was no contingency plan in place about staffing issues and that those concerns not being addressed caused other staff members to have breakdowns and people to burst out into tears.[96][92] T 2-55, ll 24-26.[93] T 2-56, ll 1-4.[94] T 2-56, ll 8-17.[95] T 2-56, ll 19-20.[96] T 2-56, ll 22-24.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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