Khan v Workers' Compensation Regulator

Case [2020] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Khan v Workers' Compensation Regulator [2020] QIRC 095

PARTIES:

Khan, Colleen Kay
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

 WC/2017/116

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

 24 June 2020

HEARING DATES:

WRITTEN SUBMISSIONS:

26, 27, 28 and 29 August 2019
11, 12, 13, 14 and 15 November 2019
24 February 2020

20 April 2020 (Appellant)
22 May 2020 (Respondent)
5 June 2020 (Appellant in Reply)

MEMBER:

HEARD AT:

Thompson IC

Townsville

ORDERS:

1.      The appeal is dismissed.

2.      The decision of the respondent of 6 June 2017 is confirmed.

3.      The appellant is to pay the respondent's costs of and incidental to the appeal.
CATCHWORDS:

WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - where appellant bears onus of proof - where standard of proof on balance of probabilities - whether appellant sustained a psychological injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 - whether employment is the major significant contributing factor to the injury - whether reasonable management action taken in a reasonable way - whether implementation of the performance management plan was reasonable management action - whether the performance management plan was managed in a reasonable way.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 548A, s 549, s 550

Eric Martin Rossmuller AND Q-COMP - (C/2009/36) - Decision <

MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101
Allwood v Workers' Compensation Regulator [2017] QIRC 88

Read v Workers' Compensation Regulator [2017] QIRC 072
Watson v Foxman (1995) 49 NSWLR 315

Cowen v Bunnings Group Ltd [2014] QSC 301

Gilmour v Workers' Compensation Regulator [2019] QIRC 022
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Ramsay v Watson [1961] 108 CLR 642
Q-COMP v Hohn (2008) 187 QGIG 139
Tabet v Gett [2010] HCA 12

Delaney v Q-COMP [2005] QIC 11; 178 QGIG 197
Qantas Airways Limited AND Q-Comp [2006] 181 QGIG, No 9
APPEARANCES:

Mr J. Greggery, QC and Mr R. Armstrong, Counsel instructed by Ms T. Cox, Organic Legal for the Appellant.
Mr C. Clark, Counsel, directly instructed by Mr M. Cutting, the Workers' Compensation Regulator, the Respondent.

Reasons for Decision

  1. A notice of appeal was lodged with the Industrial Registry on 29 June 2017 by Colleen Kay Khan (the appellant/Khan) pursuant to s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act) against a decision of the Workers' Compensation Regulator (the respondent/Regulator) dated 6 June 2017.

  2. The decision of the respondent was to confirm the decision of WorkCover Queensland to reject the appellant's application for compensation in accordance with s 32 of the WCR Act.

    Relevant Legislation

  3. The legislation pertinent to this appeal is as follows:

    32      Meaning of injury

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

    (a)for an injury other than a psychiatric or psychological disorder ‑ the employment is a significant contributing factor to the…

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Details
AGLC
Khan v Workers' Compensation Regulator [2020] QIRC 95
Case
[2020] QIRC 95
Decision Date

CaseChat Overview and Summary

Colleen Kay Khan, the appellant, filed an appeal against the Workers' Compensation Regulator, the respondent, seeking review of a decision that rejected her claim for workers' compensation. The dispute centred on whether Khan sustained a psychological injury due to her employment and if her employer's actions constituted reasonable management. The case was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issues the court needed to address were whether Khan's psychological injury met the criteria outlined in section 32 of the Workers' Compensation and Rehabilitation Act 2003, specifically if her employment was the major significant contributing factor, and whether the employer's actions, specifically the implementation and management of a performance management plan, were reasonable. The court also needed to determine the appropriate standard of proof, which was on the balance of probabilities.

The court examined the evidence from both parties, including testimonies from Khan, her psychiatrist, and several witnesses from the respondent. The tribunal found that Khan had not met the burden of proof required to establish her psychological injury was due to her employment. It was concluded that the employer's actions were reasonable management and that Khan's psychological injury was not predominantly work-related. Therefore, the appeal was dismissed, and the original decision of the respondent was upheld. Khan was also ordered to pay the respondent's costs associated with the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the respondent of 6 June 2017 is confirmed.

3. The appellant is to pay the respondent's costs of and incidental to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".[2][2] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101.Evidence In the course of the proceedings, evidence was provided by seven witnesses. The Commission, in deciding to précis the evidence of the witnesses and submissions notes that all the material has, for the purposes of this decision, been considered in its entirety.Witnesses The witnesses for the appellant were:· Colleen Kay Khan; and· Dr Michael Likely, Psychiatrist (Dr Likely). The witnesses for the respondent were:· Melissa O'Brien (O'Brien);· Allison Perry (Perry);· Aubrey Murakami (Murakami);· Chris Pittard (Pittard); and· Kasey Tauti (Tauti).AppellantKhan Khan first commenced employment with the Oral Health Services, Townsville Hospital in 1991. She gave evidence of her previous employment history that included:· school dental service;· dental nurse, Palm Island;· women's fashion - manufacturing and retail; and· Telstra.Khan returned to the Townsville Hospital in 1993 as a casual dental assistant and remained there employed in various capacities. The re-engagement saw her located at North Ward with a relocation to new premises in Douglas occurring in 2000. Khan's initial role was that of a dental assistant but she later acted in the role of senior dental assistant which included a 12 months' secondment to Mt Isa as the regional district senior dental assistant. After acting in the role of a Team Leader in 2007 she was appointed to the position permanently in 2010 as "administration team leader (ATL) for Oral Health Services".[3] Since the appointment the area of work significantly expanded with coverage now including prisons and nursing homes.[3] TR2-20, L25. The role included the co-ordination of staff as well as recruitment and selection of staff which required her direct participation in the recruitment process for administrative positions in her team with the final approval being made by the service group. In May 2014 there was a change of manager when O'Brien took over that role and she remained in the position permanently except for two periods of maternity leave. The administrative staff under Khan comprised booking officers, billing officers and records staff who serviced Kirwan and North Ward dental facilities with eight and five dental chairs respectively. Kirwan was the central hub with two staff on reception taking enquiries from the hospital system, external and internal clients, patients and call centre staff. Khan's responsibilities also encompassed undertaking administrative functions for dental work done throughout the district which included generating rosters for the clinicians, organising and completing all paperwork, records and consent forms as well as filling any cancellations. Khan described the nature of work undertaken on a daily basis on the front desk at the Kirwan facility being at times "just mayhem".[4] On the issue of telephone calls there were often over 100 phone calls per day and at one point in 2014 there were over 250 calls in a day. Appointments were required to be managed and in particular when someone didn't turn up they needed to try and fill that spot. The failure to attend rate had been an issue because it would leave a dentist and dental assistant without work for that period.[5][4] TR2-31, L19.[5] TR2-32, LL15-18.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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