Hardy v Simon Blackwood (Workers' Compensation Regulator) - [2015] ICQ 27

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Hardy v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 027

PARTIES:

BARBARA MARY HARDY

(appellant)

v
SIMON BLACKWOOD, WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2014/57

PROCEEDING:

Appeal

DELIVERED ON:

8 October 2015

HEARING DATE:

5 February 2015; further submissions 6 August, 13 August 2015

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant claims she suffered a compensable psychiatric injury as a result of bullying, harassment and inappropriate behaviour in the workplace – where the appellant provided a list of 49 stressors – where the appellant identified major stressors – whether the Commission erred by failing to consider the stressors on a global basis to support a finding that a ‘toxic work environment’ existed – whether the Commission erred by failing to make any findings with respect to which of the stressors were considered to involve management action – whether the Commission erred in finding that the injury was excluded under s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003

Workers’ Compensation and Rehabilitation Act 2003, s 32(5)

CASES:

Delaney v Q-Comp (2005) 178 QGIG 197
Q-COMP v Hohn (2008) 187 QGIG 139

APPEARANCES:

SD Anderson instructed by Shine Lawyers for the appellant

F Lippitt directly instructed by the Regulator for the respondent

In September 2009 the appellant (Ms Hardy) commenced working for the Diamantina Shire Council as a receptionist. Ms Hardy claims to have suffered a compensable psychiatric injury as a result of bullying, harassment and inappropriate behaviour in the workplace. She says this occurred in the period from September 2009 to June 2011.
She appeals from the decision of the Commission which dismissed her claim for compensation.
Ms Hardy was a worker for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’) and the Regulator accepted that she was suffering from a psychiatric illness. The questions before the Deputy President were:
(a) Was her employment a significant contributing factor to the injury? And, if so,
(b) Was the injury excluded by s 32(5) of the Act?
At the time relevant to this appeal, s 32 provided:
“(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), 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 Deputy President, after a detailed examination of the relevant evidence, held:
(a) That Ms Hardy’s claim had not been substantiated; and
(b) Her injury was excluded under s 32(5) of the Act.
The appellant’s case

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.

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Details

Case: [2015] ICQ 27
Decision Date: 8 October 2015

CaseChat Overview and Summary

The case involved an appeal by the appellant, Hardy, against a decision of the Workers' Compensation Regulator, Simon Blackwood. The dispute centred on whether Hardy's claim for compensation for a psychiatric injury resulting from workplace bullying, harassment, and inappropriate behaviour was correctly assessed and dismissed by the Regulator. Hardy presented a list of 49 stressors in her case and identified several as major stressors. The key legal issues were whether the Commission erred by not considering the stressors in their entirety to establish a 'toxic work environment', failing to determine which stressors involved management action, and whether the injury was correctly excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003.

The Court considered whether the Deputy President's inclusion of stressor 40 as a major stressor was an error. While Hardy did not categorise this stressor as a major one, the Court found that this did not affect the overall consideration of the case. The Court noted that all stressors were presented by Hardy as causative of her injury, regardless of their classification. The Deputy President conducted a thorough analysis of each stressor, concluding that most did not involve management action but rather interactions between employees. The Court supported the Deputy President's findings, stating that the evidence did not substantiate Hardy's claims. The Court emphasised the importance of the primary tribunal's advantage in assessing witness credibility and concluded that the Deputy President's findings were supported by the evidence.

In summary, the appeal was dismissed as the Court found no error of law, fact, or discretion in the Deputy President's decision. The Deputy President's analysis was deemed thorough and appropriate, and the evidence did not support Hardy's claims for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Deputy President included as a “major stressor” stressor 40. That was an error. Stressor 40 was not nominated by Ms Hardy as being in the same category as the ones already considered. It is argued by the appellant that to the extent that it was considered to be a major stressor by the Commission it tainted the Deputy President’s consideration of the cause of the injury and led the Commission into error. I do not understand how that can be so. Whether it is described as a major stressor or a primary stressor or just, simply, a stressor, it is still one of the matters relied upon by Ms Hardy as having caused her injury. The fact that Ms Hardy had nominated some stressors as being more important than others does not change the circumstance that all of them had been nominated as causative. Conclusion The Deputy President engaged in a careful and detailed analysis of each of the stressors alleged to have been responsible for the injury. She held that most of the stressors did not relate to management action but to interactions between employees within the office. The Deputy President accepted that the work environment at the Council could be difficult at times. She accepted the appellant’s claim to the extent of finding that the general work environment was at times difficult not only for Ms Hardy but also for other employees as a consequence of Ms Hardy’s actions on a number of occasions. The Deputy President took into account the arguments advanced on Ms Hardy’s behalf and determined that the evidence did not support the case for the appellant. This was a case in which the advantage held by the primary tribunal in assessing witnesses is substantial. The assessments made by the Deputy President were supported by the evidence and the appellant’s case was, in effect, an argument that a different conclusion should have been reached. But the conclusions which were reached were all open on the evidence. The appellant has not demonstrated any error of law, fact or exercise of discretion. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hardy v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 027
PARTIES:	BARBARA MARY HARDY (appellant) v SIMON BLACKWOOD, WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO/S:	C/2014/57
PROCEEDING:	Appeal
DELIVERED ON:	8 October 2015
HEARING DATE:	5 February 2015; further submissions 6 August, 13 August 2015
MEMBER:	Martin J, President
ORDER/S:	Appeal dismissed.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant claims she suffered a compensable psychiatric injury as a result of bullying, harassment and inappropriate behaviour in the workplace – where the appellant provided a list of 49 stressors – where the appellant identified major stressors – whether the Commission erred by failing to consider the stressors on a global basis to support a finding that a ‘toxic work environment’ existed – whether the Commission erred by failing to make any findings with respect to which of the stressors were considered to involve management action – whether the Commission erred in finding that the injury was excluded under s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 Workers’ Compensation and Rehabilitation Act 2003, s 32(5)
CASES:	Delaney v Q-Comp (2005) 178 QGIG 197 Q-COMP v Hohn (2008) 187 QGIG 139
APPEARANCES:	SD Anderson instructed by Shine Lawyers for the appellant F Lippitt directly instructed by the Regulator for the respondent