Haack v Workers' Compensation Regulator

Case [2017] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

 Haack v Workers' Compensation Regulator [2017] QIRC 115

PARTIES:  

Haack, Barry James
(appellant)

v

Workers' Compensation Regulator
(respondent)

CASE NO:

 WC/2016/115

PROCEEDING:

 Appeal against decision

DELIVERED ON:

 22 December 2017

HEARING DATES: 

3, 4 and 5 April 2017

MEMBER:

 Deputy President O'Connor

ORDERS:

1.      The appeal is allowed.

2.      The decision of the respondent dated 14 June 2016 is set aside.

3.      The application for compensation made by the appellant is one for acceptance.

4.      The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR

LEGISLATION:

CASES:

Acts Interpretation Act 1954 (Qld), s 14D

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Blackwood v Adams [2015] ICQ 001

Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

Carlton v Blackwood [2017] ICQ 001

Commonwealth Bank v Reeve (2012) 199 FCR 463

Commonwealth Bank v Reeve (2012) 199 FCR 463

Davis v Blackwood [2014] ICQ 009

O'Brien v Q-Comp (2007) 185 QGIG 383

Read v Workers' Compensation Regulator [2017] QIRC 072

WorkCover Corp (SA) v Summers (1995) 65 SASR 243

WorkCover Corp (SA) v Summers (1995) 65 SASR 243

Yousif v Workers' Compensation Regulator [2017] ICQ 004
APPEARANCES:

Ms S.C. Anderson, Counsel instructed by Shine Lawyers for the appellant.

Mr S.P. Gray, Counsel instructed directly by the respondent.

Reasons for Decision

  1. The appellant was employed as a charger/loader operator by Glencore Australia at the Lady Loretta Mine, an underground mine located north-west of Mt Isa.

  1. The appellant's WorkCover compensation application was lodged on 16 January 2015. XtraCare, the self-insurer for Glencore Australia rejected the application by reasons for decision on 6 March 2015. The appellant lodged an application for review on 6 March 2015. The Regulator set aside the decision of XtraCare on 13 July 2015 and returned the matter to XtraCare with directions, particularly in relation to obtaining further medical evidence. XtraCare obtained a report from a psychiatrist and then issued a new decision on 30 September 2015. XtraCare advised the appellant, by letter also dated 30 September 2015, that it had again rejected his application. On the same day the appellant sought review of this second XtraCare decision. The Regulator again set aside the decision of XtraCare and returned it to XtraCare with instructions to refer the matter to the Medical Assessment Tribunal. XtraCare complied with the Regulator's direction. The Medical Assessment Tribunal provided its report on 17 March 2016. With the report of the Medical Assessment Tribunal XtraCare rejected the appellant's application for compensation on 6 April 2016. The appellant sought review of that decision but the Regulator confirmed it on 14 June 2016. The appellant filed a Notice of Appeal to this Commission on 8 July 2016 pursuant to section 549 of the Workers' Compensation…

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Details
AGLC
Haack v Workers' Compensation Regulator [2017] QIRC 115
Case
[2017] QIRC 115
Decision Date

CaseChat Overview and Summary

The case of Haack v Workers' Compensation Regulator involved an appeal against a decision made by the Workers' Compensation Regulator. The appellant, Mr Haack, sought to overturn a decision that denied his claim for workers' compensation on the grounds that his psychiatric injury was excluded under section 32(5) of the Workers Compensation Act 1987 (Qld). The dispute centred around whether Mr Haack's injury was related to reasonable management action taken by his employer, which would exclude it from compensation under the Act.

The key legal issues before the court were whether Mr Haack's psychiatric injury arose out of or in the course of his employment, whether his employment was the major significant contributing factor to the injury, and if the injury was excluded by section 32(5) of the Act. The court had to consider the evidence presented, including the medical evidence provided by Dr Karen Chau, a Consultant Psychiatrist, who diagnosed Mr Haack with an adjustment disorder and other psychiatric conditions. Dr Chau concluded that Mr Haack's employment was the sole contributing factor to his injury, specifically identifying certain work-related events as significant contributors.

The court found that Mr Haack had indeed suffered a personal injury that arose out of and in the course of his employment, and his employment was the major significant contributing factor to the injury. The court emphasised that if the exclusionary provision of section 32(5) was to be invoked, the party relying on it must identify the relevant management actions with a reasonable degree of particularity. The court held that the respondent had not sufficiently identified the management actions that could be considered reasonable and taken in a reasonable way, and thus the injury was not excluded under the Act. Consequently, the appeal was allowed, the previous decision was set aside, and Mr Haack's application for compensation was accepted. The respondent was ordered to pay Mr Haack's costs associated with the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the respondent dated 14 June 2016 is set aside.

3. The application for compensation made by the appellant is one for acceptance.

4. The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, and in answering the questions above, I find that the appellant suffered a personal injury; the injury arose out of, or in the course of the appellant's employment; the appellant's employment was the major significant contributing factor to the injury; and, the appellant's injury was not excluded by operation of s32 (5) of the Act.Medical Evidence Dr Karen Chau, a Consultant Psychiatrist, examined the appellant on 19 October 2015. In a medical report dated 27 October 2015, Dr Chau diagnosed the appellant with an adjustment disorder diagnosed with mixed anxiety and depressed mood, generalised anxiety disorder and social phobia. Dr Chau identified the following four factors which contributed to the appellant's injury: Dr Chau believed that the appellant's employment was the sole contributing factor to his injury. Dr Chau further states that the "factors mentioned in the body of the report between 30 December and 2 January 2015" as being "the significant contributing factor to his psychiatric injuries."[79] [79] Ex. 6. In a file note dated 23 March 2017, [80] Dr Chau referred to the four factors identified at page 26 of her report. The first two factors caused the appellant to be more vulnerable to injury. The last two factors identified in the answer to Question 4 were factors which she believed to be the major significant contributing factors to the injury and both were work-related. [80] Ex. 7. There is no question of the appellant's injury arising from anything other than his employment. The events, as outlined above, make it clear that the appellant's injury clearly arose out of, or in the course of, his employment at the Lady Loretta Mine. In Read v Workers' Compensation Regulator, I wrote the following: In Allwood v Workers' Compensation Regulator I was presented with a further opportunity to consider the meaning of "management action". In that case I wrote: I see no reason to add to that extract for the purposes of disposing of this appeal. The respondent broadly contends in its Statement of Facts and Contentions that if the appellant suffered a personal injury, which arose out of or in the course of his employment and his employment is the major significant contributing factor, then the appellant's psychiatric or psychological disorder has arisen out of, or in the course of, reasonable management action taken in a reasonable way by his employer in connection with the appellant's employment. Consequently, the respondent submits that the injury is excluded by virtue of s 32(5) of the Act. The respondent's Statement of Facts and Contentions does not identify the management action said to enliven s 32(5) of the Act. For my part, if reliance is to be placed on the exclusionary provision contained in s 32(5) then it is incumbent on the party relying on the exclusionary provision to identify, with a reasonable degree of particularity, the matters which it says constitutes management action. In a series of decisions, [94] Martin J has taken the opportunity of examining the role and status of Statements of Facts and Contentions. In Yousif v Workers' Compensation Regulator his Honour notes:[94] Blackwood v Adams [2015] ICQ 001, [19]; Carlton v Blackwood [2017] ICQ 001, [18]; Yousif v Workers’ Compensation Regulator [2017] ICQ 004, [13], [15].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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