Langerak v Workers' Compensation Regulator - [2019] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Langerak v Workers' Compensation Regulator [2019] QIRC 035
PARTIES:	Langerak, Jade Erin (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/12
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	22 February 2019
HEARING DATES:	20 to 24 August 2018 9 to 11 October 2018 28 November 2018 (Appellant's Submissions) 9 January 2019 (Respondent's Submissions)
MEMBER: HEARD AT:	Thompson IC Brisbane
ORDERS:	1. The Appeal is upheld. 2. The decision of the Regulator of 22 December 2016 is set aside. The claim for workers' compensation is one for acceptance. 3. The Regulator is to pay the appellant's costs of and incidental to the appeal.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Appellant was a "worker" - Appellant sustained a personal psychiatric injury - Injury arose out of or in the course of employment - Employment the major significant contributing factor - Management action neither reasonable or taken in a reasonable way - Appeal upheld.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 548A, s 549 WorkCover Queensland v Kehl [2002] 170 QGIG 93
APPEARANCES:	Mr D. Atkinson of Counsel, instructed by Murphy Schmidt Solicitors for the Appellant. Mr C. Clark of Counsel, directly instructed by the Workers' Compensation Regulator, Respondent.

Reasons for Decision

A notice of appeal was lodged by Jade Langerak (appellant) with the Industrial Registrar on 23 January 2017 pursuant to ss 548A(1) and 549 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (Regulator) dated 22 December 2016.
The decision of the Regulator was to confirm the decision of the Insurer (WorkCover) to reject the appellant's application for compensation in accordance with s 32 of the Act.
Relevant Legislation
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 injury; or
(b)for a psychiatric or psychological disorder ‑ the employment is the major 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;
(c)action by the Regulator or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way ‑
•action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
•a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.
Nature of Appeal
The appeal to the Commission are by way of a hearing de novo in which the onus of proof falls upon the appellant.
Standard of Proof
The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".
Evidence
In the course of the proceedings, evidence was provided by 11 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.
Witness Lists
The witnesses for the appellant were:
·Jade Langerak (Langerak);
·Dr Brad Matthews (Dr Matthews); and
·Associate Professor Bruce Kahn (Dr Kahn).
The witnesses for the Regulator were:
·Superintendent Glenn Horton (Horton);
·Belinda Casey (Casey);
·Senior Sergeant Allan Hussey (Hussey);
·Inspector John Kranenburg (Kranenburg);
·Dr Anand Gundabawady (Dr Gundabawady);
·Acting Inspector Shane Bourke (Bourke);
·Inspector Denis Fitzpatrick (Fitzpatrick); and
·Sergeant Kaz Doyle (Doyle). Note: In 2014 Doyle's surname was Hutchinson.
Appellant
Langerak
Langerak, a Senior Constable of Police stationed at Petrie Police Station, graduated from the police academy on 12 December 2007, gave evidence initially relating to two setbacks of some significance in her career as a police officer.
In 2009 whilst stationed at Emerald she, in the early hours of the morning, arrested a woman who was intoxicated and urinating on the front step of the Emerald Police Station. The woman had been in the company of a number of off duty police officers who were also intoxicated and sought to prevent the arrest from going ahead. As a result of Langerak's actions she had been excluded from a particular friendship circle at the station including not being invited to the Christmas party and labelled a "dog". In 2011 some two years after that incident whilst at the Toowoomba Police Station she recalled hearing a group of male officers talking about the Emerald incident.
The second setback occurred whilst she was stationed at the Mt Isa Police Station and her husband (at the time) was stationed at the Camooweal Police Station. Her husband had engaged in a relationship in mid‑2013 and despite attempts to reconcile with her husband and work through those issues she eventually left their house in August 2013 "with a couple of pillows, some uniforms and my dog". There was a period where she had nowhere to reside due to being evicted from police accommodation and rent prices in Mt Isa being high. The financial arrangements with her husband were "extremely complicated" due to three rental properties and vehicles that had been purchased. Her husband had been treating her "very badly", she was stressed about finances and not knowing how she would be able to manage the situation. Langerak requested a transfer to Rockhampton, being that she had family and friend support however ended up being transferred to the Townsville Police Communication Centre (TPCC) officially starting work on 3 January 2014.
Langerak was excited to commence in the TPCC even though her preferred option was that of general duties officer. From the outset she found the work challenging and compounding matters was that two particular sergeants in the room started to bully and ostracise her, particularly if she made a mistake. Socially the TPCC was isolating for Langerak as she did not really fit in due to the age demographic of the other staff and she had difficulties in maintaining relationships with other people.
In about April 2014 a general practitioner gave her an urgent referral to Dr Kahn who immediately made arrangements for her admission to the Toowong Private Hospital which occurred on 15 April 2014 where she remained for a period of six weeks, being discharged on 27 May 2014. Whilst in hospital she underwent electric shock treatment and participated in counselling.
Upon her release from hospital she felt that she would be able to do policing work but had concerns about a return to the TPCC. The fact that her "boss" was unsupportive (as at no time whilst in hospital was contact made by the "boss") and that previously she had not learnt the work systems well enough to remember them.
Dr Matthews her treating psychiatrist at Toowong provided a letter (dated 27 May 2014) that seemed to include the words:
I would support Constable Langerak returning to general duties rather than her current substantive role in communications given her preference and mental health issues.
Dr Matthews further appeared to state:
I would be happy for her to return to general duties police work from 16 June 2014.
That correspondence was forwarded to Queensland Police Service (QPS) however she did not commence work on 16 June 2014 and was later informed the only position available was at the TPCC. Langerak spoke at length with Dr Kahn and Dr Matthews about her concerns to return to a negative workplace that was toxic to her own health.
On 17 June 2014 Langerak forwarded an email to Bourke in which she stated:
I do have another medical certificate up until 27 June. This is to try and get everything sorted. I was only told yesterday that I would be returning to comms despite doctors advising I not return to that environment…
Following a consultation with Dr Matthews on 10 June 2014 he provided correspondence (dated 19 June 2014) to the QPS that confirmed she had done well with treatment and her mental state was now settled such that she was able to return to the workplace. Dr Matthews further stated:

I understand that is the wish of Queensland Police Service for Ms Langerak to remain in Police Communications rather than return to General Duties. I am of the opinion that to continue Ms Langerak in the Police Communications environment would be deleterious to her health and welfare, and can confirm that she was medially fit to return to General Duties policing at the time of her last consultation with myself, which was 10 June 2014.
I am also satisfied that, at the time of my last consultation with her she was suitable to have a police firearm and operate a police vehicle.
I would strongly support the return of Ms Langerak to General Duties policing and would be concerned about the adverse health effects of staying in Police Communications.

Dr Kahn in correspondence (dated 19 June 2014) to the QPS that stated:
She has recovered substantially, is now doing well and is highly motivated to return to work.
Her prior work in the communications area was a substantial contributing factor to the onset and severity of depression. Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.
Outside of her work in the communications post she described, there are no psychiatric impediments of which I am aware to her being able to gradually return to work as a Front Line Officer in a safe, efficient and effective manner. In a similar vein, I am not aware of clinically significant reasons as to why she would not be able to perform in the following capacities:
·To make critical operational policing decisions under duress
·To carry a firearm and make strategic and critical decisions in its use under duress
·To drive a police vehicle at high speed under conditions of duress.
On 23 June 2014 Langerak's general practitioner (Dr Felicity Bailey) initiated correspondence that stated:

As per recommendations from Miss Langerak's treating psychiatrists, I equally recommend for her to return to general duties and also advise against her returning to communications as this was a contributing factor to her recent medical condition. I see her fit to return to work as per the psychiatrists return to work plan.

By this time, for Langerak things were becoming dire, she was struggling financially due to not working and made the choice to return to her parent's house because there was no answer on when she would be returning to work. On 7 July 2014 Lauren Phillips (Phillips) a QPS Injury Management Coordinator corresponded with Langerak, requiring the production of a medical certificate from 27 June 2014 as she had not returned to work. Langerak responded in the following terms:
Hi Lauren,
I don't have a sick leave certificate from this date because I'm no longer sick and have been given approval to return to work.
Langerak forwarded an email to Casey (dated 8 July 2014) in which she stated the failure to return her to work was causing so much stress due to her dire financial situation. Her doctors had advised against a return to the TPCC and she wanted to know if there was anywhere else she could go for the sake of getting back to work.
Casey by email (dated 11 July 2014 at 3.30 pm) advised Langerak that Acting Superintendent Fitzpatrick would be calling her before 4.00 pm in relation to her return to work. Langerak's evidence was that Fitzpatrick called as scheduled, advising the QPS were not prepared to offer any rehabilitation at which point she asked why she was not being sent for an independent medical examination (IME). The understanding she took from the call was she either went back to the TPCC or she did not have a career. At no time from 11 July 2014 onwards was Langerak offered any rehabilitation or a return to work other than at the TPCC.
In an email (dated 14 July 2014) Casey informed Langerak she had met that morning with Fitzpatrick to discuss a "few ideas", the main issue being that since 2013/2014 changes to the QPS meant there were now very limited positions and opportunities for redeployment. Langerak emailed Casey (dated 16 July 2014) about her non return to work, asking if the QPS was refusing to refer her elsewhere because another psychiatrist would likely make the same recommendations as the other psychiatrists.
Kranenburg (who was unknown to Langerak) sent an email (dated 24 July 2014) on behalf of the QPS seeking a suitable postal address for the purposes of sending her correspondence "via registered post". From her experience it was her believe she was to be served with a "notice of suspicion" usually about a review of illness. Also on 24 July 2014, Kranenburg sent a further email to Langerak (at 1.09 pm) in which it was stated:
The Assistant Commissioner is sending you a letter of review in relation to your medical condition.
Later on the same day Casey sent an email to Langerak at 3.10 pm in which she stated:
I am aware that you are going to receive a letter. The content of the letter is to provide you with formal options in relation to your medical condition.
Your permanent restriction is a barrier in returning to work in your substantive position at Townsville Communication Centre.
If you provide me with your mailing address and I can organise for this to be sent to you.
Note: The letter referred to by Casey was not formally tendered in the proceedings.
Langerak emailed an industrial officer at the Queensland Police Union of Employees on 24 July 2014 about her current circumstances in which she stated:

Today I was told by an inspector of pcc that I will be receiving a letter of review of my medical condition.
I am highly stressed over this and can't get any other information.
I am worried what it means. Are they terminating my employment despite me desperately trying to get back to work. And do I have options because I have been given clearance to return.
I have even told my Dr I will return to comms.

On or around 28 July 2014 she had decided to go back to the TPCC and had "begged" Dr Kahn to sign off on her return because she had no choice. Dr Kahn had informed her he would not support a full‑time return to the TPCC but would accept a graduated work return plan.
There was a meeting held on 4 August 2014 at which Kranenburg and Casey attended by phone in Brisbane and Dr Kahn and Langerak by phone in Townsville and despite expressing a desire not to perform duties in communications, explaining the need to be closer to home, and concerns about bullying at the TPCC she agreed to a graduated return to work plan for the TPCC.
The return to the TPCC was worse than when she was there previously because everyone knew she had had mental health issues, she had to be retrained and she was humiliated by Sergeant Tania Child in front of others. The suitable duties program required Langerak to "complete reorientation program for systems and complete training in computer systems to support return to work" which according to Langerak did not occur. From a personal perspective she deteriorated to a stage where she prayed to leave this earth, was surviving on limited food, facing being divorced and also bankruptcy.
Eventually the QPS sent Langerak for an IME and she attended upon Dr Gundabawady on 4 November 2014 after which a report was provided to the QPS (dated 11 November 2014).
Casey emailed Langerak on 21 November 2014 stating:
The IME report has been received and it advises that at this time you are not able to work in a frontline policing role and to achieve this you need to undertake treatment for 4 ‑ 8 months. Further information has been requested from Dr Gundabawady around what type of treatment you should be seeking since you are already actively engaged in treatment with Dr Kahn.
I will also be asking Dr Gundabawady if your ability to work in Townsville Communications is a permanent restriction and to confirm if there is any expectation that after your 4 ‑ 6 months of treatment if you are able to return to this location. The report has advised that you are able to work, but not in a frontline capacity, I will be working with the command to see what arrangements can be made.
Following receipt of the email from Casey she remained on sick leave until contacted by Casey and Horton to be advised she was to commence at the Ross River Police Citizen Youth Club (PCYC) on 4 January 2015. Langerak remained there until July 2015 when she won a position on merit, transferring to Brisbane. The time spent at the PCYC had "brought her back to life" and the only leave taken whilst there was recreation leave.
In regards to stressors, Langerak identified work at the TPCC, finances and her marriage/husband, but nevertheless she was very happy and at the time she had been fully cleared and qualified to handle a police revolver.
Under cross‑examination Langerak conceded that the first period of employment at the TPCC had not attracted a workers' compensation claim by her despite having made a number of such claims previously [Transcript p. 1‑83]. On whether marital difficulties, financial difficulties etcetera were important factors in her psychiatric health throughout 2013 and 2014, she responded:
In all due respect, that ‑ at the time, yes, financial difficulty and marital problems were a problem. However since then, they've escalated even worse and I'm not suffering psychological injury. [Transcript p. 1‑84]

In respect of Langerak having visited Mt Isa on 12 November 2014 for purposes of seeing her then husband who was threatening to kill himself, she acknowledged the contents of her general practitioner's clinical notes for a consultation that occurred on 19 November 2014 following her return from Mt Isa and being stressed because her husband was going to kill himself. The visit to Mt Isa did not cause her stress with the upcoming IME, said to be causing more stress [Transcript pp. 1‑86 and 1‑87]. She did not accept that the five or six weeks away from work was caused by that visit but there was stress and anxiety associated with her financial circumstances and an aunty had recently passed away [Transcript pp. 1‑87 and 1‑88]. In the period between December 2009 and January 2012 she was under a lengthy rehabilitation plan as a result of a psychological claim in respect of an arrest of a woman at Emerald, whilst at the same time working full‑time [Transcript p. 1‑89]. In the period between December 2009 and January 2012 she had worked at six different police stations [Transcript p. 1‑89]. There were difficulties with her marriage in 2012/2013 which had led to sleep difficulties due to stress [Transcript p. 1‑90]. Her financial situation due to investment properties was also causing stress at that time [Transcript p. 1‑91]. Langerak accepted that her personal situation including issues with her husband's partner was one of "pretty dire circumstances" [Transcript p. 1‑92]. She accepted she had taken to Townsville, in January 2014, some "sort of emotional psychiatric baggage" from her marital circumstances [Transcript p. 1‑93].

Langerak agreed that the following extract from Dr Kahn's correspondence (dated 19 June 2014) described what occurred in her first stint at the TPCC:

Her prior work in the communications area was a substantial contributing factor to the onset and severity of depression. Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance. [Transcript p. 4‑7]

At the conference on 4 August 2014 Langerak recalled that her position was for a return to general duties, had been bullied and isolated at the TPCC and that she had been apprehensive after being told (previously) she was going to receive a registered letter [Transcript p. 4‑8].
On commencement in the TPCC on either 3 or 6 January 2014 the first three days were spent at a QCAD training course [Transcript p. 4‑9]. Langerak denied that she looked down on civilian staff in the TPCC [Transcript p. 4‑10]. Hussey had tried to help her attain senior constable status according to Langerak because he needed someone of that rank in the TPCC [Transcript p. 4‑11]. The progression did not occur because she had not fulfilled the full year of service requirement which lead to the lodgement of grievance that was subsequently dismissed [Transcript p. 4‑12]. On 11 March 2014 Langerak approached Doyle in a highly emotional state, telling her she was not coping because of home and work life [Transcript p. 4‑12]. Doyle offered assistance through the police psychologist which she agreed to accept [Transcript p. 4‑13]. In attending the TPCC on a later date she did not recall a conversation with Doyle about a number of stressors external to work over the past year but did recall saying she was finding work demotivating [Transcript p. 4‑15]. Langerak accepted that a range of personal factors were causing her stress [Transcript p. 4‑16] but not making it difficult to cope with her work duties [Transcript p. 4‑17].
On 10 March 2014 she attended upon a general practitioner where the clinical notes reflected both personal and work circumstances as having contributed to her depressive symptoms at the time [Transcript pp. 4‑19 to 4‑20]. A further visit to a general practitioner on 17 March 2014 had Langerak assessed with severe major depression for factors that included social isolation, demotivating job, breaking up of relationship and "perhaps" physical activity [Transcript p. 4‑22]. Langerak consulted other medical practitioners around that time prior to being admitted to the Toowong Hospital [Transcript p. 4‑24].
On admission to the Toowong Hospital the issues identified for her condition were other than work‑related [Transcript p. 4‑26]. with Langerak accepting an opinion of Dr Matthews that the actual stressors that had contributed to her two episodes of major depression were issues around the arrest of a friend of a police officer and the bullying that followed that incident plus her marital separation [Transcript p. 4‑28]. Langerak had never denied those factors regarding her admission to the Toowong Hospital but also work was a contributing factor in her hospitalisation [Transcript pp. 4‑29 to 4‑30]. The period of time off work, subject of the appeal, was due to work issues that impacted on her mental health between August and November 2014 [Transcript p. 4‑31]. Langerak had been hospitalised from 25 to 28 November 2014 following an attempt to kill herself as a consequence of personal stressors [Transcript p. 4‑32] however she denied the time off work from November 2014 until January 2015 was because of issues relating to her ex‑partner becoming engaged [Transcript p. 4‑33]. On not being promoted to the rank of senior constable it was causing her financial stress in early 2014 [Transcript p. 4‑41].
Langerak failed a personal performance agreement (PPA) test in Mt Isa in 2013 and in or around March 2014 (according to Phillips) there were concerns about her mental health and the QPS had removed her firearm, although she was unaware the firearm has been removed [Transcript p. 5‑5]. In June 2014 she was attempting to return to work and at that time all leave entitlements were exhausted [Transcript p. 5‑7]. Langerak in an email to Dr Kahn on 26 June 2014 expressed concerns about returning to the TPCC due to isolation and other reasons without mention of the toxic environment or being bullied [Transcript p. 5‑10]. Langerak in 2009/2010 attended at a number of stations as part of a return to work plan including Toowoomba where she raised allegations of bullying and harassment [Transcript p. 5‑12]. She confirmed that both Dr Matthews and Dr Kahn had been informed by her of reasons why she was reluctant to go to TPCC which included being bullied by two sergeants, being isolated and struggling with the system [Transcript p. 5‑15]. Langerak accepted it was reasonable in June/July for Casey to make inquiries about positions available in the Townsville region for a return to work [Transcript p. 5‑21]. She insisted that Fitzpatrick had told her the Service was not prepared to offer her rehabilitation at that time [Transcript p. 5‑21]. On 9 July 2014 Casey confirmed she was making enquires to support a graduated return to work undertaking meaningful duties [Transcript p. 5‑22]. Casey acknowledged the advice from Dr Kahn that it was not possible to return to the TPCC had complicated the return to work process [Transcript p. 5‑23]. In reference to correspondence between Casey and herself on 16 July 2014 she accepted that financial issues were "raising their head" at that time and potentially having an impact upon her mental health [Transcript p. 5‑25].
Langerak emailed Casey on 17 July 2014 which stated the following:
Hello, Belinda. I’ve had enough of all this crap. Just get Dr Kahn to say I can go back to comms and let’s be done with it. I doubt he will do it, but we can try. If not, send me to an independent doctor and I’ll lie about everything and the QPS will have the paper saying I can work in comms if they want. So it will probably end up killing me eventually and another loss in my life, but I need to work because I have no income or support in any way. Can’t wait until the 4th of August, because then I will have to surrender my animals to the RSPCA because I definitely have no way of feeding them. [Transcript p. 5‑27]
Langerak conceded she had made the decision to return to TPCC by 17 July 2014 prior to knowledge of a registered letter from the QPS [Transcript p. 5‑27]. On 28 July 2014 in an email to Casey she stated:
Hi Belinda. Can we try and start the process of working with Dr Kahn, me to return to comms. I understand this is my only option. I'm prepared to do this. [Transcript p. 5‑30]
By that time she had been given notice of the registered letter [Transcript p. 5‑30] it had been explained to her by that stage the QPS were looking into her mental health in respect of continuing duty [Transcript p. 5‑31].
A case conference was conducted by phone on 4 August 2014 which addressed issues relating to her graduated return to work [Transcript p. 5‑32]. On her return to work, training that was to be arranged did not occur apart from sitting next to somebody for a couple of shifts [Transcript p. 5‑34]. A number of propositions were put to Langerak about a conversation with Hussey on her return to work that she was unable to recall [Transcript pp. 5‑33 and 5‑34]. Upon her return to work she conceded Hussey had spoken to her about problems with her performance [Transcript p. 5‑38]. Hussey had provided assistance to her with regards to a possible fraud matter involving her ex‑husband, on or around 1 September 2014 [Transcript p. 5‑38] with Langerak's evidence being that as her officer in charge she was required to go through him [Transcript p. 5‑39]. Sometime in mid‑September 2014 Langerak told Hussey that she was not able to get on with some people in the workplace [Transcript p. 5‑39]. Langerak recalled a conference with Hussey and Doyle on 18 September 2014 about a quality assurance assessment of her work and a sample of 16 calls identified that 12 had not met the required standard [Transcript p. 5‑40]. She claimed the issues arose because she did not understand the system [Transcript p. 5‑40].
On 12 September 2014 she visited a doctor advising of tiredness being back at work, being in an unsatisfying role and ongoing significant financial stress [Transcript p. 5‑41]. Casey at that time discussed the contents of the return to work program and Dr Kahn had not been keen to sign off on the plan [Transcript p. 5‑42]. Around 30 October 2014 Langerak informed Casey that she was suicidal and also contacted Dr Kahn by email requiring a medical certificate to allow her to return to work [Transcript p. 5‑43]. Dr Kahn informed Casey on 6 October 2014 that he was not aware of any psychiatric reason why she could not return to work in her current role [Transcript p. 5‑45]. The QPS arranged for Dr Gundabawady to assess her on 4 November 2014 which she welcomed [Transcript p. 5‑45]. On 20 November 2014 she informed Hussey she was going on sick leave and subsequently never returned to the TPCC [Transcript pp. 5‑45 and 5‑46].
In re‑examination Langerak reiterated earlier evidence regarding not completing the training package on return to the TPCC in August 2014 with the training provided, limited to sitting beside other staff. The training was not adequate. Langerak recalled thinking in June 2014 that there was a common practice for people with mental health issues to have barriers put up by the QPS to manage them out. The decision to send her back to the TPCC was, at the time, her only option having no alternative offer.
Counsel for the Regulator was granted leave by the Commission for Langerak to be recalled for the purposes of additional cross‑examination on the discrete issue of a Facebook post attributed to her and having been posted on either the 22 or 23 November 2014. Langerak accepted the content of the post that included references to her personal circumstances relating to marital issues. She refused to concede that the post was evidence of a "pretty significant and stressful time" for her, rating it no higher than "upsetting" [Transcript p. 8‑33].
Dr Matthews
Dr Matthews a psychiatrist first treated Langerak in April 2014 and more recently in May 2016. Dr Matthews provided two reports that were tendered in the proceedings [Exhibits 60 and 61]. He treated Langerak during her stay at the Toowong Hospital between 15 April and 27 May 2017 following her referral from Dr Kahn for depressed mood and depressive features including suicidal thoughts. On 27 May 2014 he authored correspondence "To whom it may concern, QPS Townsville" in which he stated:
Dear Sir/Madam, re: Constable Jade Langerak, 21/9/82. I have recently treated Constable Langerak in hospital for symptoms of a mood disorder. She has improved with treatment. I would be happy for her to return to general police duties police work from the 16th June 2014. Her usual treating psychiatrist will be able to provide an updated report at this time regarding access to a service‑issue firearm. I would support Constable Langerak returning to general duties rather than her current substantive role in communications, given her preference and mental health issues.
From a mental health perspective, given the potential for a relapse in somebody who had been unwell they should avoid some environments that are considered to be dangerous.
Dr Matthews generated further correspondence (dated 19 June 2014) to the QPS in which he stated:
I understand that it is the wish of the Queensland Police service for Ms Langerak to remain in Police Communications rather than returning to General Duties. I am of the opinion that to continue Ms Langerak in the Police Communications environment would be deleterious to her health and welfare and can confirm that she was medially fit to return to General Duties policing at the time of her last consultation with myself, which was 10 June 2014.
I am also satisfied that at the time of my last consultation with her she was suitable to have a police firearm and operate a police vehicle.
The clinical concerns held by him at that time were about a return of Langerak to police communications which could have put her at risk of a very serious relapse. He received no contact from the QPS regarding his correspondence.
Dr Matthews gave evidence of being contacted by WorkCover and of a report he furnished to WorkCover (dated 22 February 2016) in which he concluded that the stressors relating to her financial and marital situations were effectively static but the stress in the workplace appeared to have deteriorated. The report stated:
This would support a clear deterioration on her mental state associated with the claimed aggravation arising from workplace factors, most notably her return to the PCC despite specialist medical opinion to the contrary. I further note the improvement in her mental state when she was removed from this workplace environment.
The deterioration in context of stressors requires the need to look at stressors that are more acute than stressors that may be unchanging and in this case the acute stress seemed to be the lead up to and the return to the police communications centre.
Dr Matthews was taken to a report of Dr Gundabawady (dated 17 March 2015) and in particular the following commentary at pages 7 and 8:
Ms Langerak has had significant difficulties with her previous workplace at Townsville Police Communications Centre. Please see the details in my previous report. There had been a worsening of her anxiety and depressive symptoms while she was working at the communications centre. The workplace stressors seem to have not resolved, it is likely there will be a relapse of her depressive and anxiety symptoms if she were to return to work at the Townsville Police Communications Centre. These barriers seem to be permanent.
Dr Matthews found the commentary unsurprising as it was consistent with what he had projected earlier.
Under cross‑examination Dr Matthews confirmed that when he first saw Langerak in 2014 her principle stressors were based on relationship and financial issues which he accepted could impact upon a person's ability to handle the routine tasks associated with work [Transcript p. 4‑55]. In terms of there being no reference to workplace factors in the March/April period of 2014, it was the case they were not a significant issue at that point [Transcript p. 4‑56]. Following Langerak's hospitalisation hostile text messages from her husband's lover became a precipitating factor in her mental health [Transcript p. 4‑58]. In June 2014 there had been a great deal of discussion with Langerak about the location of the return to work [Transcript p. 4‑58]. On being shown Dr Kahn's report (dated 19 June 2014) he conceded he had relied on a completely different history to Dr Kahn [Transcript p. 4‑60]. Dr Matthews agreed there was a subtle distinction between Langerak not wanting to go back to the TPCC because she did not like the job and what had happened in the workplace from January to March 2014 [Transcript p. 4‑60]. He accepted that Dr Kahn was in the best position to make the call on Langerak's return to work [Transcript p. 4‑64].
In re‑examination Dr Matthews opined that an ideal return to work for Langerak would have been a graduated return to work away from the TPCC with regular monitoring of her emotional state.
Dr Kahn
Dr Kahn is a consultant psychiatrist with 30 years' experience in generally elder persons and forensic psychiatry and had treated Langerak as a patient in April 2014. He confirmed the content of the clinical note on that date as:

My work situation has contributed to the spiral I'm in. Loved roadwork but couldn't afford to live [in] Mt Isa. Wanted Rocky but got Townsville. Got offered in communications ‑ radio. I'm miserable, more isolated. It's enough that it's like another part of my life taken away from me, more isolated than I've ever been. I need my own space. I had a job that I loved and now I'm in one I can't stand. During [instinct] challenged, but husband's mistress emails me [indistinct] because Kayla's friend was there too. Don't know what [indistinct] husband won't let go. Kayla, mistress ‑ Kayla's friend been harassing me. Kayla's friends harassing me. Kayla sends provocative emails and patient opens. Married six years. [Transcript p. 4‑69]

He recalled Langerak providing information (in graphic detail) about her personal circumstances, of becoming increasingly despondent, unmotivated, frustrated and had contemplated suicide. He arranged for her to attend the Toowong Hospital from 15 April to 27 May 2014 after which she returned to Townsville as his patient. Dr Kahn forwarded correspondence (dated 23 June 2014) to the QPS (Phillips) in which he responded to a number of questions posed by the QPS stating, amongst other things:

Her prior work in the communications area was a substantial contributing factor to the onset and severity of depression. Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.
Outside of her work in the communications post she described, there are no psychiatric impediments of which I am aware to her being able to gradually return to work as a Front Line Officer in a safe, efficient and effective manner. In a similar vein, I am not aware of clinically significant reasons as to why she would not be able to perform in the following capacities:
·To make critical operational policing decisions under duress
·To carry a firearm and make strategic and critical decisions in its use under duress
·To drive a police vehicle at high speed under conditions of duress.

With respect to your enquiry as to whether Ms Langerak has "any personality vulnerabilities", I am unaware of any clinically significant characterological deficiencies that would be likely to have an adverse or compromising effect on her capacities to function as a Front Line Officer.

Dr Kahn indicated his response was as a result of a view very strongly held in respect of Langerak having substantially recovered psychiatrically. He supported a graduated return to work plan as a Front Line Police Officer and that she should not return to the TPCC because the people at that posting were very distressing to her. Dr Kahn evidenced that he believed he had made clear she needed a different posting.
The QPS had requested he respond to four questions about Langerak's circumstances both medially and a return to work (on or about 1 July 2014). One of the questions posed was if she could not return to Police Communications would that be a permanent medical restriction to which he responded:
At this juncture, it is my opinion on the balance of probabilities that the restriction is of an indefinite nature.
Further correspondence was generated by Dr Kahn (dated 8 July 2014) to the QPS (Casey) which advised Langerak was:
…now asymptomatic, enjoying an excellent recovery, aside from episodes of high anxiety when thinking that she may be required to work in Communications.

Dr Kahn then identified the work factors and assignments that had contributed to Langerak being unable to perform her duties at the TPCC. These were:
·        The general environment triggered fear and anxiety responses when she was working there
·        The very thought of having to return to work in Communications triggers similar states of anxious, fearful distress
·        She assumed the position in a state of relative duress, needing to move away from Mt Isa and hadn't wanted to work in communications in the first place but "felt forced into it" due to her circumstances

·        She found the position distressfully isolating
·        She experienced some of her supervisors as "hostile"
·        She also experienced her OIC as unsupportive
·        At the time she was learing [sic] the QCAD system, she was becoming increasingly depressed (and, as a result, cognitively impaired). This resulted in her now not being able to remember critical elements of the system. She has commented, though, that she is now recovered and would be able to re‑learn the system, but it would take time and effort to do so all over again
·        Finally, re‑placing Jade in Communication would potentially serve as a risk factor towards her relapse.

A compounding factor would have been to place somebody in a distressing and upsetting environment by coercion into that environment despite medical opinion to the contrary.
Dr Kahn recalled his participation in a conference on 4 August 2014 which also involved Casey, an Inspector of Police, and Langerak which resulted in him signing off on a suitable duties program for Langerak to return to the TPCC. In signing off he described it as being a matter of choosing the lesser of two evils. It was his opinion she would have been sacked from her job, loose her career if he had not signed off. He recalled making the point quite clearly that Langerak should not be returned to the TPCC. Casey had told him there were no alternatives other than posting her at communications.
Under cross‑examination Dr Kahn acknowledged that a note he had made after the 4 August 2014 meeting made no mention about Langerak's non‑return to the TPCC because he "didn't have the time to write it" [Transcript p. 4‑87]. He had corresponded with Langerak's general practitioner on 5 April 2014 and conceded that there was no record of the "quite diabolical description" given the work at the TPCC at that time [Transcript p. 4‑90]. He reaffirmed his evidence about Langerak being sacked if she refused to return to communications [Transcript p. 4‑91]. Dr Kahn formed the view that Casey's credibility was in doubt because of trying to return Langerak to work in a place that she detested and did not want to return to [Transcript p. 4‑92]. He was not happy about the proposal to return her to the TPCC but had been willing to negotiate something in her best interests [Transcript p. 4‑93]. He accepted that Langerak had agreed to go back to communications but had done so "quite reluctantly" [Transcript p. 4‑95]. Upon her return to work he observed that Casey "on the surface" appeared to be genuinely interested in supporting the return to work [Transcript p. 4‑96]. The attempted suicide by Langerak on 25 November 2014 was more likely to have been solely related to finding out her ex‑husband was getting engaged [Transcript p. 4‑98]. Dr Kahn described as "clinical nonsense" that the suicide attempt was more influential on her mental health at the time than any work‑related factor [Transcript p. 4‑99].
In re‑examination he mentioned communications from Casey where she had euphemistically referred to personnel at the TPCC as having strong personalities which had the effect of acknowledging they were problematic for Langerak.
Regulator
Horton
Horton a Chief Superintendent of Police with the QPS was in 2013 the superintendent Commander of the QPS communications group which included (at the time) 19 centres state‑wide. He was aware of the circumstance relating to Langerak's transfer from Mt Isa to the TPCC. Langerak first came to his attention in late January early February 2014 regarding an application to progress to senior constable that required his consideration. He advised she had failed to meet the criteria and he did not recommend the progression and later reaffirmed that decision.
Horton was aware of sick leave commenced in March 2014 by Langerak due to the absence being in excess of five days. He later became aware of medical advice that she was suffering psychological injury and of the QPS starting a suitable duties planning to bring her back to the workplace. Following her release from the Toowong Private Hospital he was informed that her treating psychiatrist had certified her fit to return to general duties, able to use a firearm and drive a police vehicle at speed. Having regard for her history he had some concerns on suitability, ability for her to perform the role and that frontline exposure may cause her further psychological harm and potentially expose the community to some risk and for those reasons he was not satisfied she was in a position to undertake frontline operations because of her ongoing previous medical history and disclosures that she had made to him. Ultimately she returned to the TPCC under a restricted duties arrangement (suitable duties plan).
Under cross‑examination he evidenced that as the Superintendent he was able to recommend that a person be directed to undertake an IME but the authority sat with an Assistant Commissioner to authorise [Transcript p. 5‑63]. In December 2014 he informed Langerak of an option to undertake a suitable duties program at the Ross River PCYC [Transcript p. 5‑64]. The plan was for Langerak to return to the TPCC following the PCYC placement [Transcript p. 5‑66]. Horton explained that having read Dr Gundabawady's report of the IME that formed part of the reasoning for sending her to the PCYC [Transcript p. 5‑67]. Horton recalled having read two reports authored by Dr Gundabawady (dated 11 November and 1 December 2014) at the time they were published [Transcript p. 5‑73]. The reports contained factors that assisted in making the decision to offer alternative duties because they were about her psychiatric condition and he was not a psychiatrist himself [Transcript p. 5‑73].
The communication centres were often seen as attractive safe‑harbour positions for placement of staff who were struggling with frontline duties [Transcript p. 5‑74]. When Langerak was placed at the PCYC she was an "additional" as there was no position which was an option rarely used because it interferes with the workforce management [Transcript p. 5‑75]. On why the PCYC could not have been offered to have her back in June 2014, the evidence was "there was no position to place her in then" [Transcript p. 5‑75]. In response to a question from the Commission as to why the placement could not have occurred in June 2014 Horton evidenced that it could have occurred at any workplace across the district but generally that was a last resort, something not commonly done [Transcript p. 5‑76].
From the time of becoming aware in February 2014 of Langerak's condition there were concerns about her wellbeing and they were carried through until she left the communications group [Transcript pp. 5‑75 and 5‑76]. It was only after the IME that the placement at the PCYC was looked at [Transcript p. 5‑77]. In early 2014 he had seen advice provided by Langerak's treating specialist [Transcript p. 5‑80]. As far back as June 2014 he was requesting further and better information via injury management about her condition including clarification from her specialist however there were not enough "red flags" until November 2014 to warrant the expense of an IME [Transcript p. 5‑81].
Horton recalled discussion around correspondence generated by Dr Matthews in May 2014 where he supported her return to general duties from 16 June 2014 [Transcript p. 5‑83]. Whilst Specialists may offer advice about the suitability to carry firearms ultimately it is senior police who make such decisions [Transcript p. 5‑84]. The correspondence had raised concerns about Langerak's mental health and returning to the TPCC which according to the witness raised flags that went through from February to December 2015 [Transcript p. 5‑84] with him never reaching a level of satisfaction himself about all the advice he was receiving [Transcript p. 5‑85]. On correspondence from Dr Kahn (dated 19 June 2014) he conceded he would have been briefed on the content that included references to the TPCC having been a significant contributing factor to Langerak's condition and that work assignment was likely to remain a risk factor with his response to question the injury management support officer on what were the specific factors in the workplace that were causing the stressors. There was a continuing theme of questions to management over a three to four month period [Transcript p. 5‑86]. Horton accepted that correspondence from Dr Kahn (dated 8 July 2014) stated it would be a dangerous compromise for her to go back to communications and she was capable of frontline duties [Transcript p. 5‑87]. Dr Matthew's generated further correspondence on 19 June 2014 which Horton acknowledged he would have been briefed on "the general theme of the beliefs of the doctor". The letter contained references to Langerak being suitable to carry a firearm, and operate a police vehicle but it would be deleterious to her health and welfare to return her to the TPCC [Transcript p. 5‑89]. Horton evidenced that options were explored around Townsville for placing Langerak besides the TPCC [Transcript p. 5‑93] but as at 11 July 2014 he did not think there were other potential placements being contemplated [Transcript p. 5‑94]. Casey was asked to talk to Dr Kahn at the conference about the working environment at the TPCC and to get advice from him on whether they could put something together [Transcript p. 5‑94]. The Case Conference was designed to get advice about Langerak's ability to work at the TPCC [Transcript p. 5‑95]. Dr Kahn agreed to a plan for the TPCC [Transcript p. 5‑95]. In 2014 he believed that they could get Langerak back to the TPCC under a suitable duties plan but by 2014 he was aware that options of medical retirement could be on the table in the future [Transcript p. 5‑100]. In the period between 11 July and 4 August 2014 there was always consideration of placing Langerak elsewhere however frontline duties were not considered due to her psychiatric condition [Transcript p. 5‑104]. On the psychiatric opinions in place in June/July 2014 that suggested Langerak was better suited for frontline duties rather than at the TPCC, Horton disagreed with the advice which had its basis on what Langerak was telling them and in his case he had a full history of her employment to assist him in reaching his position [Transcript p. 5‑105].
In re‑examination the evidence was that Langerak's fundamental position was a return to frontline duties. In the period between July and the case conference in August 2014 he believed that Langerak had given an indication she may have been able to return to the TPCC.
Casey
Casey a support services officer for the QPS previously held the position of injury management officer which required her to support and assist injured members and staff through physical and psychological injury, back to work, career transition, or a medical retirement process. Her role included acting as a go‑between with the injured worker and management.
Casey first spoke to Langerak after her release from the Toowong Hospital in May 2014 but acknowledged that a colleague (Phillips) had acted in her role whilst she took a period of leave. On 24 June 2014 she wrote to Dr Kahn seeking a response to the following propositions:
·        Please provide currently symptomology associate with current diagnosis.
·        In your report you reference that Police Communications area was a substantial contributing factor to Jade's current diagnosis. Please advise what type of work factors and or work assignments contributed to Jade not being able to perform her duties in Police Communications. E.g. please nominate factors/work assignments such as peers, environmental, exposure to critical policing events, vicarious trauma, calls types. Etc.
·        If Jade cannot return to Police Communications is this a permanent medical restriction?
·        What is the likelihood that exposure to frontline traumatic and critical events undertaken as part of a frontline police officer will aggravate or exacerbate jade's current condition?
The responses arose from Dr Kahn's report of 19 June 2014. Dr Kahn proved difficult to communicate with and often she required Langerak's assistance in communications with him.
Information on Langerak's case management file had indicated a previous history of psychological injury between February 2009 to February 2012 and the option of returning to operational duties because of a very fragile personal life was not viable as the risk could not be controlled. Casey found Dr Kahn's opinion on the return to work options conflicting. Casey later became aware that Dr Matthews had expressed a similar view point but Casey kept in contact with Dr Kahn because he had the current and most relevant knowledge.
Langerak disclosed to Casey that she had gone through a traumatic marriage break‑up that had impacted on her emotionally and it was Casey's understanding this had triggered her mental health decompensation Additionally she was struggling financially bearing the burden of debt from the marriage. Langerak had early in the peace offered that she would do almost anything, frontline, front counter duties or school‑based police program and after having gone through the regional chain of command they were unable to provide adequate supervision or meaningful duties. On 9 July 2014 Casey suggested to Langerak that if ultimately she was unable to return to her substantive position at the TPCC she should put in a TAC application, attaching an application form.
The QPS had been prepared to offer Langerak rehabilitation with Casey working very hard in the background but there had been difficulties due to governmental changes in 2013/2014 where there was more scrutiny on position numbers than in previous years. The advice of Dr Kahn that she could not return to the TPCC had complicated the return to work process. Casey sought to arrange a case conference as soon as possible with Dr Kahn to see if there was anyway Langerak, with his support, could return to the TPCC.
On 17 July 2014 Langerak sent her an email that stated:
Just get Dr Kahn to say I can go back to comms and let’s be done with it. I doubt he’ll do it, but if we can try. If not, send me to an independent doctor, and I’ll lie about everything, and the QPS, that the paper is saying I can work in comms, that they want.
…
Well, it will probably end of killing me eventually, and another loss in my life. But I need to work, because I have no income or support in any way. I can’t wait until the 4th of August, because I have to surrender my animals to the RSPCA, as I will definitely have no way of feeding them. [Transcript p. 6‑34]

This was the first indication from Langerak that she was prepared to go back to the TPCC. Casey upon reading the email thought that Langerak was in a highly emotive state and when questioned by the Commission that it appeared to be someone desperate who was willing to lie to go back to a place against medical opinion, Casey accepted that assessment.

On 22 July 2014 Casey received an email from Langerak advising that she had spoken to Hussey which made her anxious and she wanted to do her "rehab stint" somewhere else as going back to "comms" was causing too much anxiety and worry. Also in the email was a reference to "one of the big factors" when she got sick had been being isolated in "comms". Casey stated at that point of time she believed Langerak had been ill because of personal issues and she had no awareness of any previous workplace issues. In another email on the same day Langerak stated amongst other things "I accept I'm going back to comms. I just need a little bit of help getting back there, so that I don't fail like I did last time". On 24 July 2014 Casey made a file note following a conversation with Langerak who advised she was stressed and anxious as a consequence of her marriage and she needed suitable strategies to deal with the stress. Later that same day Casey sent the following email to Langerak:

I am aware that you are going to receive a letter. The content of this letter is to provide you with formal options in relation to your medical condition.
Your permanent restriction is a barrier in returning to work in your substantive position at Townsville Communication Centre.
If you provide me with your mailing address and I can organise for this to be sent to you.
Thank you.
If you would like to talk to me about it, please feel free to give me a call.

Casey along with Kranenburg from the QPS participated in a telephone conference on 4 August 2014 with Dr Kahn and Langerak to discuss a return to work and suitable duties plan which was agreed. Neither Dr Kahn nor Langerak expressed any opinion that she should not go back to TPCC. Following the conference Casey sent an email to Dr Kahn that confirmed:

·approval from Horton to extend return to work plan to eight weeks;
·Casey will have weekly contact with Langerak;

·final two weeks will provide an opportunity for Langerak to work some later shifts; and

·Casey was open to changing the plan based on Dr Kahn's guidance.

At her request she had Dr Kahn provide the following correspondence (dated 7 August 2014):
I am writing at the request and on behalf of Ms Langerak, who is a patient under my medical care.
She is free to return to work according to the graduated return to work plan that we recently agreed upon with the Queensland Police Service.
Thank you for taking this information under advisement and for helping with Ms Langerak's treatment plan. Please don't hesitate to let me know if you have any questions or concerns, need any further information or if there is something else I might need to do in this regard.

The return to work progressed well until there were "some issues with some colleagues" which Casey asked her to address with Hussey. Casey was unable to recall any mention of family/personal issues at that time. On 3 September 2014 Langerak advised Casey of personality issues with a sergeant and a communications room operator with the sergeant being overbearing. Casey encouraged her to talk to Hussey. Up until 22 September 2014 Langerak had been progressing with her return to work and on that day sought leave due to a family illness. On 3 October 2014 Casey received a phone call from her manager Shauna McGarry (McGarry) about Langerak feeling suicidal which prompted her to contact Dr Kahn who contacted Casey on 7 October 2014 by email stating:

I’m writing at the request of and on behalf of Jade Langerak, who’s keen to return to work. I’m not aware of any psychiatric reason would materially interfere with her capacity to work in her current role. So please consider this as my statement. Psychiatrically cleared to work as part of the treatment plan and return‑to‑duties plan. [Transcript p. 6‑51]

On 8 October 2014 Langerak informed Casey that she had been suffering from depression since the bullying incident in Emerald and had still managed to perform her on road duties. An email the previous day from Langerak to Casey informed:

I worked out what the problem is. It’s not comms as such. It is the isolation of being here in Townsville on my own. I’m struggling with depression but struggling on my own, with my family so far away. I cry every day, not because of work but because I’m just so lonely … [Transcript p. 6‑52]

Casey telephoned Langerak on 9 October 2014 to advise she would be sent for an IME on 4 November 2014 due to the lack of progress and with her having been suicidal.
Prior to 4 November 2014 Casey had seen no need to consider sending Langerak for an IME because they had been able to proceed to a suitable duties program.
Under cross‑examination Casey accepted her injury management role was that of a liaison person [Transcript p. 6‑64] that works within a case management team, that includes an Assistant Commissioner, Inspector, Psychologist and (often) her manager [Transcript p. 6‑65]. QPS policy was to return an injured worker back into full‑time work particularly after long absences, building their work fitness in consultation with relevant medical practitioners [Transcript p. 6‑66]. Considerations included not exacerbating any underlying conditions and having them carry out meaningful duties [Transcript p. 6‑67]. In terms of returning Langerak to work it was necessary to work with senior officers within the region and also Horton who had responsibility for communication centres across the State [Transcript p. 6‑68]. The intent was to return Langerak to her substantive position and also seeking alternate positions through the chain of command for her rehabilitation [Transcript p. 6‑69]. The Townsville district has multiple business units although Casey was not personally aware of the structure [Transcript p. 6‑69]. At the time of her dealings with Langerak she had not been shown reports from Dr Matthews [Transcript p. 6‑70] but had seen a report from Dr Kahn which had been addressed to Phillips (who was backfilling for her at the time) [Transcript p. 6‑71]. Casey confirmed the QPS had requested a report from Dr Kahn as her treating specialist [Transcript p. 6‑71]. The report (dated 19 June 2014) indicated Langerak was highly motivated to return to work and supported a return to operational policing duties [Transcript pp. 6‑71 and 6‑72]. The report also provided an analysis of a return to the TPCC as being a risk factor [Transcript p. 6‑72]. Casey indicated that the opinion of Dr Kahn about the TPCC did not make sense when the length of service there by Langerak was considered [Transcript p. 6‑73]. Casey requested assistance from the Northern Region to find alternative duties [Transcript p. 6‑74].

There appeared to be conflict in Dr Kahn's report about her ability to return to front line policing but not communications [Transcript p. 6‑74]. Dr Kahn informed Casey in correspondence (dated 8 July 2014) that in respect of Langerak's duties at the TPCC "the general environment triggered fear and anxiety responses when she was working there" and that she found it "distressfully isolating" and that some of her superiors were "hostile" [Transcript p. 6‑77]. Efforts were made across the Northern Region to find an alternate return to work place other than the TPCC but there were unsuccessful [Transcript p. 6‑77]. The case management team were sceptical about Dr Kahn's opinions on Langerak's return to work [Transcript p. 6‑79]. Casey was aware by 13 July 2014 that Langerak was prepared to see an independent psychiatrist however Casey never responded to the request [Transcript p. 6‑80]. Langerak in an email to Casey on 11 July 2014:
I can't risk a relapse. I can't go back to being that sick again. It's the worst experience on top of an already emotional 18 months. I have been given a clearance to return to work, just not in Communications. I am prepared to work in any other area, and said this to Superintendent Fitzpatrick, and I'm desperate to get back to work and need to. [Transcript p. 6‑81]
Casey on consideration of the email felt that Langerak had a lot of personal issues going on in the background [Transcript p. 6‑83]. On the proposition that an email sent to Dr Kahn by Casey about Langerak expressing a preference to go back to the TPCC being a "bit disingenuous" the witness conceded it was "not a great email" [Transcript p. 6‑83]. Casey agreed that she had made a considerable effort to find an alternate return to work option however at the end of the day Langerak was only offered the TPCC [Transcript p. 6‑85].
On 24 July 2014 there was a suggestion about correspondence from the QPS to Langerak that may involve options that including medical retirement as a result of her medical condition [Transcript p. 6‑85]. Part of the suitable duties plan regarding Langerak's return to the TPCC involved training which Hussey indicated was occurring [Transcript p. 6‑88]. Casey was aware Langerak was "very anxious" about what would occur on her return to the TPCC [Transcript p. 6‑88]. Casey was unaware why the case management team had not agreed for Langerak to have an IME [Transcript p. 6‑89]. Casey was unable to point to any inquiries after 11 July 2014 about an alternate position for Langerak's return to work [Transcript p. 6‑91]. Based on Langerak's previous diagnosis and the issues she had been dealing with, the demands of a frontline police officer, her return to work should be non‑operational according to the case management team [Transcript p. 6‑91]. Casey was aware as at 8 July 2014 that Langerak's dire financial situation required her to return to work [Transcript p. 6‑93]. The placement of Langerak at the PCYC in January 2015 was done as a result of an independent examination by Dr Gundabawady [Transcript p. 6‑98] and was a surplus position [Transcript p. 6‑99]. The surplus option as part of a suitable duties plan had been around for some time [Transcript p. 6‑99]. The decision to place her at the PCYC would have been made by the case management team [Transcript p. 6‑100]. Casey conceded that a conclusion could be drawn that the sum total of inquires made of the Police Service for return to work programs for Langerak were between 8 and 11 July 2014 [Transcript p. 6‑103].
Casey had a meeting with Acting Commissioner Vanderbilt on 11 July 2014 after having been advised by Glenn Kachel (Kachel) there was no alternate position available for Langerak but could not recall the specifics of the meeting [Transcript p. 7‑4]. Also on the same date she emailed Langerak to advise that Fitzpatrick would be calling her before 4.00 pm [Transcript p. 7‑4]. Casey had not spoken to Fitzpatrick, giving evidence that it would have been Vanderbilt who informed her of Fitzpatrick's intentions to call Langerak [Transcript p. 7‑6] but she had no knowledge of what Fitzpatrick would be saying to Langerak [Transcript p. 7‑7]. Casey recalled that on 16 June 2014 Langerak informed Hussey that she was prepared to have an IME [Transcript p. 7‑8]. Casey was unable to produce any record of requests or enquiries made between 9 July 2014 and 11 July 2014 for an alternate position for Langerak's to return to work [Transcript p. 7‑9]. After being referred to Dr Gundabawady for an IME in November 2014 Langerak was offered an alternate position at the PCYC in January 2015 [Transcript p. 7‑9].
On Langerak's marital problems it was Casey's understanding that such problems had been ongoing issues in 2013, 2014 and 2015 [Transcript p. 7‑10]. At the time of Langerak's commencement at the PCYC the independent medical report indicated that she needed additional treatment before returning to frontline operational duties and it was Casey's belief that she had performed well at the PCYC [Transcript p. 7‑10]. Casey had put in an email that "correspondence with Jade has indicated that she has come to terms with a return to work at Townsville" which Casey accepted was her interpretation that Langerak accepted such a return to the TPCC was in effect, inevitable [Transcript pp. 7‑10 and 7‑11]. Casey was aware that at 24 July 2014 "termination would be her [Langerak's] worst nightmare" [Transcript p. 7‑12]. According to Casey an option not to return to the TPCC was available to Langerak but that possibly would have been the catalyst for an IME [Transcript pp. 7‑13 and 7‑14]. The IME would have included consideration of her suitability to continue as a police officer [Transcript p. 7‑14]. On Dr Kahn's opinion on her suitability to return to the TPCC, Casey did not accept that was an independent report [Transcript p. 7‑14]. Casey conceded in her dealings with Langerak she had kept very careful notes of those conferences which were comprehensive and exhaustive but she had made no notes of the return to work meeting which involved Kranenburg, Dr Kahn, Langerak and herself [Transcript p. 7‑16]. Casey could not recall Dr Kahn saying that Langerak should not be returned to the TPCC [Transcript p. 7‑16]. Casey accepted that two reports from Dr Kahn (dated 19 June 2014 and 8 July 2014) unequivocally did not favour her return to the TPCC [Transcript p. 7‑17]. At the time of the return to work conference involving Dr Kahn there was "no termination or highway option" [Transcript p. 7‑18]. On 3 September 2014 she was involved in a "long phone call" with Langerak who raised that she was having problems with other workers at the TPCC who were the reason she had not wanted to return to the TPCC [Transcript pp. 7‑20 and 7‑21].
In re‑examination Casey confirmed that she had sought to secure a position in Bundaberg for Langerak. Casey recalled on 3 October 2014 being advised that Langerak had been making threats or potential threats of suicide. After Langerak had expressed a willingness to return to the TPCC on 17 July 2014 Casey had proceeded with the return to work conference with Dr Kahn for the purpose of addressing issues associated with her return to work. Casey had no recall of Langerak making any complaints to her about appropriate training.
Hussey
Hussey a Senior Sergeant of Police is the Officer‑in‑charge at TPCC and was in that position at all relevant times to this appeal. He was advised in late 2013 that Langerak was to be laterally transferred on a TAC transfer from Mt Isa to the TPCC for personal or health reason. She presented for work on 6 January 2014 upon which time she undertook QCAD training at the Mundingburra Police Complex where she was trained by a Sergeants Edwards and Doyle. A Sergeant is generally in charge on the floor with persons of Langerak's rank being a level above the civilian staff.
Langerak initially appeared to be willing to learn the job but she had concerns about things that were impacting on her life outside of work. Hussey had been required to give her guidance on how to relate to civilian staff compared to a rank structure. Langerak at the time had not progressed to senior constable through the PPA system and he attempted to assist her in the progression by developing a strategy to meet the area in which she had failed to meet. Langerak performed to a standard whereby he submitted a Senior Constable Progression Certificate however further up the ranks her application was rejected which led to her filing a grievance.
Hussey went on recreation leave on 28 February 2014 at which time he was satisfied with Langerak's work performance. Upon his return on 31 March 2014 he received a briefing from Doyle. Langerak was absent on his return from the workplace and did not return until 6 August 2014. In general terms he was aware of the circumstances in which she returned to work in August 2014. On her return he had a conversation with her where it was said that she did not feel confident with the QCAD system which he dealt with by offering to have someone sit with her as a mentor. He gave her a "pep talk" about being a supervisor, in particular in dealing with civilian staff, make sure there were no ongoing issues and to communicate effectively within her role. Langerak undertook training on 13 August 2014 as part and parcel of training he had arranged for her and he was informed by the officer providing the training that she was very good at QPRIME and was slowly picking up QCAD, with there being no issues at that stage. In other feedback received on 15 August 2014 there were references to her being dogmatic when receiving information and that "her current circumstance appears to have a negative impact on her enthusiasm towards the job and work output".
On 1 September 2014 Langerak approached him about a possible fraud matter in relation to her ex‑husband and he arranged for a detective to speak to her. Langerak had some absences in the early part of September 2014. Langerak approached Hussey on 11 September 2014 about issues with Sergeant Tania Child (Child) and CO Gay Hoare (Hoare) to which he advised that Child may appear to be a bit abrupt but that it is her management style to be direct. In relation to Hoare there appeared to be a personality conflict with advice given on how to communicate with her because while she was a very competent communications operator but could be a very direct person. There was an audit of 16 calls dealt with by Langerak of which four were deemed not be satisfactory. Along with Doyle he met with Langerak about the calls and spoke at length about what was expected of her and issues raised about other staff. She accepted they were not of a satisfactory standard and agreed to do better.
Langerak had emailed Casey about a chat she had with Hussey on issues she was having with Child and Hoare stating:
I'm at a loss as to what to do. I'm miserable here in this environment, because I get physical stressors from these two ladies because they know, obviously, that I'm a weak person, I can't stand up for myself. I've mentioned this to Dr Kahn and my psychologist. [Transcript p. 7‑26]
Hussey's evidence was she had been physically upset but his role as a manager did not entail clear day‑to‑day interaction with the staff.
On 22 September 2014 contact was made by Langerak about overpayment of wages and her father having cancer which resulted in her taking leave from work between 22 and 28 September 2018 returning on 29 September 2014 and then absent on leave without pay on 1 and 2 October 2014. Inspector Jackson (Jackson) contacted Hussey informing him of threats of suicide by Langerak and that her firearm had been double locked since March 2014. He contacted Casey about Jackson's call with the result being that a work clearance from Dr Kahn had to be supplied before her return to work. On her return to work on 9 October 2014 she was advised that a potential IME would take place and after that date there was a significant amount of absenteeism. He spoke to his sergeants that they should work around her needs in respect of her injury management. Langerak informed him on 20 November 2014 that she was going on sick leave and had arranged to meet with the Police Minister. Langerak never returned to the TPCC after that day.
Under cross‑examination Hussey gave evidence around the operation of the TPCC and the requirements for communication operators that including training [Transcript pp. 7‑32 to 7‑34]. In 2014 if a "cleanskin" was to seek employment in communications the police officer would need to undertake a twelve week course that would include:
·one week orientation;
·four to five weeks theory; and
·a mentoring process [Transcript p. 7‑35].
The Mt Isa communications centre had operated an IMS system and was a different "beast" to the TPCC that ran under the QCAD system [Transcript p. 7‑36]. Hussey confirmed there were six or seven work groups operating within the Townsville region [Transcript pp. 7‑36 and 7‑37]. Hussey's role as OIC did not require him to give orders, as coordinating services and directing staff was the role of the sergeants as direct line supervisors [Transcript pp. 7‑37 and 7‑38]. The briefing given on his return from leave in March 2014 informed him that Langerak's issues were being dealt with by injuring management, understanding that she was off on extended sick leave [Transcript p. 7‑41]. He was told at the time of her return in August 2014 she had concerns about retraining and not having a successful PPA [Transcript p. 7‑41]. Hussey did not recall being informed of issues such as Langerak feeling isolated, lack of stimulation and the facts about the demographics of TPCC staff (which he disputed) [Transcript p. 7‑42].
Hussey accepted that Child could be described as authoritarian with her management style being consistently firm and direct [Transcript p. 7‑44]. In respect of Hoare she was described as a "fairly strong female person" and when you are talking to her you understand her point of view. In the case of Doyle it was his view that her management style could be described as a "softer, more nurturing style" in comparison to Child and Hoare [Transcript p. 7‑44]. Whilst he spoke to Langerak about how to communicate with Hoare he could not recall having a conversation with Hoare or Child about the same thing. He decided to monitor the situation rather than act [Transcript p. 7‑45]. It was accepted that other persons had issues with Child's management style, previously but she had since developed [Transcript p. 7‑46]. Hoare would only interact in the workplace on work‑related matters ‑ it was the way she behaved [Transcript p. 7‑47]. Hussey told Langerak if things escalated he would take further action [Transcript p. 7‑48].

[100]In around 2014 an Inspector had undertaken an investigation into the TPCC which covered a wide area. The investigation focussed on a number of people including Child and Hussey [Transcript p. 7‑49]. In the period between February and September 2014 Child's management style had improved [Transcript p. 7‑51]. Hussey accepted that when Langerak returned in August 2014 to the TPCC that she faced a number of challenges on the basis of staff being aware she had been on sick leave due to a psychiatric injury [Transcript p. 7‑51]. In January/February 2014 the workplace had certain issues with strong women and those women were still employed there in September 2014 [Transcript p. 7‑52]. Hussey had been informed on Langerak's return that she had completed five days of training [Transcript p. 7‑52]. Langerak had also received training on the system by sitting next to other staff [Transcript p. 7‑53]. Hussey could point to no other training [Transcript p. 7‑53]. On the audit of Langerak's call the evidence was that twelve were not good and four were satisfactory [Transcript p. 7‑54]. Hussey accepted that a sergeant might have managed Langerak in their own special style without having involved him and at times a sergeant may reprimand a constable without involving him [Transcript p. 7‑55]. On 17 September 2014 he was aware there were problems with Langerak's answering of calls but did not believe it was a training issue but rather lack of effort on her behalf [Transcript p. 7‑56].
[101]In re‑examination it was the evidence that if Langerak had wanted to work different shifts the suitable duties plan would had to have been modified but there had been no request to change the roster. When the issue of 12 deficient calls was raised with her she had not complained about a lack of training. The TPCC workforce included a number of young single people.
Kranenburg
[102]Kranenburg, an Inspector of Police, was in charge of the Northern communication centres in 2014, based in Brisbane. On 4 August 2014 he participated in a telephone conference with Casey, Langerak and Dr Kahn which he thought was primarily about a grievance Langerak had lodged the service not supporting her upgrade to Senior Constable. He had wanted Dr Kahn to be present whilst he passed on information. There was also discussion in relation to formulating a return to work plan for Langerak to return to the TPCC. Kranenburg could not recollect the specifics of the meeting but certainly Dr Kahn appeared supportive of her return to the TPCC and he subsequently signed a clearance certificate and a return to work plan.

Under cross‑examination Kranenburg acknowledged he would have seen an email on 17 March 2014 that talked about Langerak having stressors that included "currently demotivating occupation" [Transcript p. 7‑65]. He was unable to recall his response to this and other matters at the time other than there would have been consultation with her doctor [Transcript p. 7‑66]. In an email from Phillips in March 2014 reference was made in respect of Langerak's history of sick leave and psychological issues and whilst he did not know the rights and wrongs of the issues he had certainly got "a fair taste for her propensity to alter the truth" when he had looked at her grievance report [Transcript p. 7‑67]. In relation to the investigation of the TPCC undertaken previously by an inspector, Kranenburg gave evidence of having made inquiries about Langerak at the time and in his mind it was very clear that Langerak had not been the subject of adverse treatment at the TPCC [Transcript p. 7‑67]. In response to questioning from the Commission Kranenburg agreed that he had never spoken to Langerak about her complaints at the TPCC but had spoken to Hussey and reflected upon information that was in her grievance report [Transcript p. 7‑67]. Nothing Langerak had said in her grievance was actually true and he formed that view at that very stage of the grievance [Transcript p. 7‑68]. In March 2014 he had requested Phillips to explore whether Langerak was suitable for continued employment in the QPS [Transcript p. 7‑69]. He was expecting that the advice would be based on medical professional's advice [Transcript p. 7‑70]. It was not all about managing people out, it is also about helping them back [Transcript p. 7‑70].

[104]On whether he had read reports written in relation to Langerak it was his evidence that he may not have been provided with the material and had no specific recollection of reading such material [Transcript p. 7‑71]. The meeting of 4 August 2014 was many months after the grievance had been lodged by Langerak and he had not kept notes of the meeting [Transcript p. 7‑73]. The purpose of the 4 August 2014 meeting was for Langerak to have support from her psychiatrist when she received news that she would not want to hear [Transcript p. 7‑74]. At that meeting if Dr Kahn had said putting Langerak back into the TPCC was going to cause a relapse then the QPS would not have progressed with the suitable duties plan [Transcript p. 7‑75]. Kranenburg's best recollection of the 4 August 2014 meeting was along the lines of telling Dr Kahn that all Langerak needed to do was to buckle down and demonstrate some satisfactory performance [Transcript p. 7‑76]. He certainly would not have suggested or been party to placing her in an environment that would cause her further distress and in this case he was not the decision maker, Horton was [Transcript p. 7‑77].

27 May 2014 to 28 July 2014

Upon her discharge from the Toowong Private Hospital on 27 May 2014 Langerak began agitating for a return to employment and had provided the QPS rehabilitation co‑ordinator with a medical certificate that cleared her to return to work on 16 June 2014. The QPS appeared not to have accepted, on the face, the content of the medical certificate and had written to her treating psychiatrist (Dr Kahn) on 12 June 2014 posing a series of questions.
In correspondence prepared by Dr Kahn on 19 June 2014 he stated the following opinion with regards to her return to the TPCC:
[Ms Langerak's] prior work in the communications area was a substantial contributing factor to the onset and severity of depression. Such a work assignment is likely to remain a risk factor that would be likely to compromise her otherwise favourable prognosis, and I have cautioned her against returning to the same type of work that played so instrumentally in the genesis of her depression in the first instance.

[205]Dr Kahn further opined that he was not aware of any clinical reasons that would have prevented Langerak from performing the functions to:

·        make critical operational policing decisions under duress;
·        carry a firearm and make strategic and critical decisions in its use under duress;
·        drive a police vehicle at high speed under conditions of duress.

Further there were no psychiatric impediments to a gradual return to work as a Front‑Line Officer in a "safe, efficient and effective manner".

[206]At the same time Dr Matthews generated further correspondence that had been forwarded to the QPS in which he supported the return of Langerak to general duties policing (being aware of the QPS view that she remain at the TPCC) and reiterated his previous opinion regarding a return to the TPCC would be "deleterious" to her health and welfare. He went further to opine that she was suitable to carry a police firearm and operate a police vehicle.
[207]The QPS in the period of June/July 2014 continued the theme of Langerak's only employment offer being the TPCC despite the medical advice from two treating medical specialists that such placement would not be in her interests.
[208]In evidence the Chief Superintendent Commander (Horton) of the QPS Communications affirmed his involvement in the process, which exhibited he had a full awareness of Langerak's history in the service and he confirmed he had disagreed with the advice from Drs Matthews and Kahn because he had at his disposal a full history of her employment with the service to assist him in reaching that position. In terms of fitness to carry a firearm that would always be a decision made by senior police not a medical practitioner.
[209]There was a plethora of material before the proceedings in terms of emails and other correspondence between Langerak and the QPS (predominantly with Casey) where she had continued to indicate a willingness to return to work and would undertake any role with the exception of the TPCC.

On 24 July 2014 Langerak was informed that an Assistant Commissioner would be sending correspondence to her in the form of a "letter of review in relation to her medical condition" which had the effect of putting her into a position where she emailed the Queensland Police Union advising:
Today I was told by an inspector of pcc that I will be receiving a letter of review of my medical condition.
I am highly stressed over this and can't get any other information.
I am worried what it means. Are they terminating my employment despite me desperately trying to get back to work. And do I have options because I have been given clearance to return.
I have even told my Dr I will return to comms.

[211]Whilst the correspondence was never received by Langerak there was no argument advanced that there had not been an intention for such correspondence to be sent. I accept Langerak's evidence regarding the effect of the proposed correspondence on her and the view she formed about the potential to lose her job as a Police Officer. In fact, that is supported by her actions of 28 July 2014 when she "begged" Dr Kahn to sign off on her return to the TPCC because she had no other choice.

In the period from 16 June 2014 until 28 July 2014 Langerak had two clearances issued by treating medical specialists to return to work with the QPS, albeit they both warned of the consequences if the placement was to be the TPCC. There were no medical opinions obtained by the QPS for the purposes of questioning or challenging the opinions of the two treating practitioners, only the reliance on Horton, a person without any medical qualification or background.

[213]Whilst I accept the evidence of Casey in that she had endeavoured to source other roles suitable for Langerak in this period the likelihood of that occurring is best measured against the background of Horton's evidence which indicated that such an option was rarely used as it interfered with workforce management. Further in terms of such placement in response to a question from the Commission he said such a placement could have occurred across the district but would have been a last resort.
[214]The evidence in my view points to a level of conduct by the QPS in this time period that reflected an intention to place Langerak only at the TPCC should there be a return to work and a complete disregard for the opinions of medical specialist reports that clearly warned against such a proposal on the basis of concerns for Langerak's health and wellbeing.
4 August 2014 Case Conference

A Case Conference occurred on 4 August 2014 in which Kranenburg and Casey participated by way of telephone whilst Langerak attended the offices of Dr Kahn. The conference was unable to be scheduled sooner due to difficulties experienced by the QPS in being able to confirm a suitable date with Dr Kahn.

[216]An interesting aspect of this meeting is the absence of notes taken by participants with the exception of Dr Kahn who in notes referenced matters that included:
· addressed issues relating to her graduated return to work;
· advised against night shift (10.00 pm to 6.00 am) for at least two months;

· recommended that either Kranenburg or Casey attend a meeting with Langerak and her OSO to review status, expectations, needs, etc;

· endorsed return to training as a good part of her treatment plan; and

· endorsed graduated return to work outside of graveyard shift.

[217]Interestingly in the course of his evidence in the proceedings Dr Kahn offered a significantly contrary recall of the Case Conference in that his decision to sign off on a suitable duties plan for Langerak's return to the TPCC had been a matter of choosing the lessor of two evils in that not to sign off could have led to her being terminated by the QPS. He recalled also of being informed by Casey that there were no alterative postings available for Langerak.

Whilst the contrary recall of the 4 August 2018 Case Conference meeting by Dr Kahn was disturbing, just as equally disturbing was the failure of Casey to take notes in respect of the meeting when there was an abundance of evidence in the proceedings of Casey having meticulously recorded every conversation had with Langerak. In the course of cross‑examination Casey on this very issue of her dealings with Langerak conceded that she kept very careful notes which were comprehensive and exhaustive but had not taken notes of this meeting. She offered no explanation for the failure to make notes.
Langerak gave evidence that she had withdrawn her opposition to returning to the TPCC because of fears regarding the loss of employment upon being informed on 24 June 2014 that she was to receive correspondence from an Assistant Commissioner in the form of a letter of review in relation to her medical condition.
There was a claim by the QPS that if Dr Kahn had raised concerns at the 4 August 2014 meeting about Langerak not being able to return to the TPCC they would have arranged for her to undergo an independent medical examination. There had been consistent opposition on a return to the TPCC, by Dr Kahn in his reports, prior to the Case Management Conference that had not prompted the QPS to genuinely consider sending Langerak for an independent examination and the sudden change in attitude flies in the face of their conduct up to that point of time.
On 7 August 2014 Dr Kahn generated correspondence in response to a request from the QPS (Casey) in which he stated:
She is free to return to work according to the graduated return to work plan that we recently agreed upon with the Queensland Police Service.
Thank you for taking this information under advisement and for helping with Ms Langerak's treatment plan. Please don't hesitate to let me know if you have any questions or concerns, need any further information or if there is something else I might need to do in this regard.
The ordinary reading of Dr Kahn's correspondence (dated 7 August 2014) would indicate his support for Langerak's graduated return to work plan to the TPCC and was contrary to his evidence given in the proceedings however in fairness this correspondence must be read in the context of it being a response to a QPS request following the meeting.

[223]In any event the outcome of this meeting was an agreement for a suitable duties plan to facilitate a return to the TPCC by Langerak although in the case of Langerak I am satisfied her agreement was made in circumstances where she held genuine concerns that not to return to the TPCC was likely to see her exit from the QPS and that having been placed in that position as a result of conduct by the QPS was prepared to put her health and wellbeing at risk to hold on to her career as a Police Officer.
Appellant's Statement of Facts and Contentions ‑ Alteration

In a statement of facts and contentions (dated 25 March 2017) the appellant had stated:

At the time of the conference, Dr Khan recommended that the Applicant return to work at a location other than the TPCC. Notwithstanding the recommendation, the QPS did not offer the Appellant work options other than the TPCC.

[225]The appellant sought to replace parts of the initial document in the course of the proceeding with leave granted by the commission resulting in the following addition to the initial document:

Dr Kahn confirmed his view that:
(iii)The Appellant should not be returned to the TPCC; and

(iv) The risk of relapse of her severe major depressive disorder would be increased by requiring her to return to the TPCC;
The QPS directed the Appellant that she should return to the TPCC.

The Regulator raised issues of credibility with regards to the late changes to the statement of facts and contentions, that were reasonably open to be made and around this particular point it does bring into question at least the recall of the 4 August 2014 conference but not to a point where Langerak's or Dr Kahn's credibility would be "shot" altogether.

Appellant's Return to the TPCC ‑ 6 August 2014

Following the Case Management Conference of 4 August 2014 there was a return to work at the TPCC and as part of that return Langerak was required to undertake at the outset, relevant training for the purposes of upskilling her knowledge and the computer‑based application to perform her role in the TPCC. The evidence would indicate that Langerak's background in the QPS had apart from a period of work in the Communication Centre at Mt Isa had been in general duties and the requirements of the TPCC role most definitely required a different skill set. Even the limited time spent in the Mt Isa Communications Centre was not helpful due to an antiquated system operated at that establishment.

[228]The adequacy of the training was of contest between the parties with Langerak giving evidence that the training package agreed had not occurred apart from sitting next to another employee for a couple of shifts and was not adequate.

Hussey gave evidence of Langerak undertaking training on 13 August 2014 and of being informed by the officer providing the training that Langerak was very good at QPRIME and slowing picking up QCAD. Doyle's evidence about Langerak making numerous errors when using QCAD was accompanied by the qualification that "any persons starts with it, it's quite complicated". On civilian employees at the TPCC, according to Doyle they received long periods of training but that occurred because of the need to encompass basic training in policing. The evidence of the QPS falls short of confirming any structured training had been provided.
Dr Kahn's notes of the 4 August 2014 meeting had recorded an endorsement for a return to training as a part of her treatment plan which on the face appears to be an integral part of the graduated return to employment for Langerak.
The Regulator relied upon the email correspondence between Casey and Langerak following the return to the TPCC on 6 August 2014 not containing any form of complaint from Langerak in regard to not being offered the requisite training in communications which was said to be inconsistent with her evidence. Langerak had emailed Casey on 4 August 2014 in which she had stated "All I really need is a refresher course in QCAD in terms of training".

[232]I am inclined to accept the evidence of Langerak that the training upon her return to the TPCC was so limited that it had failed to even meet the minimal threshold of a "refresher course in QCAD" and there was as a consequence of the failure to provide a level of formal training an impact on her ability to perform her role at the TPCC. Further it must be remembered that at the point of the initial engagement at the TPCC in January 2014 the level of training was not substantial, being of three days duration, further compounding the situation.
[233]In terms of her decompensation following the return to the TPCC, Langerak claimed to have been the subject of bullying by two serving Sergeants of Police (Child and Doyle) in addition to a civilian employee (Hoare). Child in particular was said to have humiliated her in front of people. On 11 September 2014 she had approached Hussey regarding issues with Child and Hoare and whilst in evidence he indicated that Child could be "a bit abrupt", "direct" and was "authoritarian" along with Hoare whom he described as a "fairly strong female person" and "doesn't leave you wondering if you don't get on with her", his chosen course of action was to monitor the situation rather than act and had no recall of raising Langerak's concerns with either Child or Hoare.
[234]The failure of Hussey, as the officer in charge at the TPCC, to act had been made in circumstances where he acknowledged other persons had previously cited issues with Child's management style and that in 2014 an Inspector of Police had undertaken an investigation of the TPCC operations in which he and Child were among the subject officers. Further his evidence included that in January/February 2014 there had been certain issues at the TPCC with "strong women" who were still employed there in September 2014.
[235]Doyle when cross‑examined on the conduct of Child described her as "straight to the point" and in the case of Hoare she was a strong personality who was "loud and direct". In respect of Child and herself the evidence was that their conduct could have easily been taken as offensive because they were female and it was not the same for the "boys".

Langerak had raised her issues with Casey (on 3 September 2014) regarding Child and Hoare at which time she was encouraged by Casey to raise her concerns with Hussey and despite following that advice, her pleas fell on deaf ears without one step being taken to address her concerns, when in reasonable circumstances the least that someone in Langerak's position could have expected would be for Hussey to, at a bare minimum, have spoken to Child and Hoare about their alleged conduct. To do nothing was not reasonable management action particularly when Hussey was fully aware of Langerak's previous mental health history.
Langerak on her return to the TPCC experienced some difficulties in the workplace in that she had been unable to get on with some members of staff and on 18 September 2014 participated in a conference with Hussey and Doyle regarding her failure to meet a satisfactory level of quality assurance having not met the required standard in 12 out of 16 sample calls. It was according to Langerak the lack of understanding of the system at the TPCC that contributed to her inability to meet the standard. Prior to the conference with Hussey and Doyle she had sought medical treatment for tiredness due to an unsatisfactory role and ongoing significant financial stress.
In the period from 12 September 2014 there was evidence that Langerak still had concerns regarding her financial situation but had continued to present for work and on or around 22 September 2014 had sought to access some unpaid leave due to her father having a serious medical procedure. On her return to work she experienced some complications in that Dr Kahn had failed to sign off on a return to work plan and it was not until 6 October 2014 that Dr Kahn advised there were no psychiatric reasons inhibiting her return to the workplace.
On 3 October 2014 Casey received a communication (phone call) from her manager (McGarry) that Langerak was feeling suicidal which prompted Casey to contact Dr Kahn in the first instance who advised Casey on 7 October 2014 that Langerak was "Psychiatrically cleared to work as part of the treatment plan and return to work". On 8 October 2014 Langerak informed Casey of previously suffering depression since the bullying incident in Emerald but had still managed to perform her on road duties.
Casey advised Langerak on 9 October 2014 that she was to be sent for an independent medical examination on 4 November 2014 due to lack of progress and with her having been suicidal.
IME
On referral from the QPS who had provided nine pages of background information relevant to Langerak's employment and medical history covering the period from 2006 until 17 October 2014, Dr Gundabawady examined her on 4 November 2014. In a report (dated 11 November 2014) forwarded to Casey he stated:

Ms Langerak also provided medical documents from her treating doctors which were not included in documents provided by yourself.

[242]The report detailed Langerak's history (as reported by her) with the QPS which can only be described as extensive and included issues that were work‑related and of a personal nature including her failed marriage. Langerak denied having made comments on 3 October 2014 to a QPS person (Sandra Wickham) about wanting to hurt herself and denied any active suicidal thoughts, intents or plans.
[243]Dr Gundabawady responded in all to 16 questions posed by the QPS that included:
How does the employee see her current capacity for work and is it consistent with the presence of a psychiatric disorder?
Ms Langerak sees herself as fully capable of returning to full time duties as a front line police officer. She is currently working at the Communication Centre. She is reporting a series of difficulties at her current workplace. She also reports a lack of family/social support and continues to present with underlying anxiety and depressive symptoms. Even though she is working full time at the Communication Centre, she reports she is not coping very well in her current workplace. I do agree with Ms Langerak that her current workplace has not been supportive and is not helping her with her condition but I am inclined to disagree with her capacity with regards to return to full time operational duties unless she has full remission of her condition. She should continue to work in an alternative position for at least a period of four to six months.

…
In your opinion, please advise why Ms Langerak has not been able to sustain a robust work history since the 2009 WorkCover incident? Is it due to the psychiatric disorder, insufficient or incorrect treatment, personality limitations, poor 'coping style', 'sick role' behaviour, psychosocial factors or no motivation to change?
As reported earlier and in the history, Ms Langerak has had a serious of stressors after her first WorkCover incident in 2009. Her current stressors seem to be the marriage breakup, significant financial difficulties due to the marriage breakup and also stressors at her current workplace. Certainly I do not think it is sick role behaviour as she is keen to return to full‑time duties, even frontline duties. I would consider the difficulties she sustained in the workplace were due to her psychiatric condition and the psychosocial stressors.
…
Is remaining in the employ of Queensland Police Service in any capacity hindering the officer's recovery?
Remaining in the position at the Townsville Communication Centre is affecting her recovery but I think she can return to work in an alternative position other than frontline duties with the Queensland Police Service to help her with her rehabilitation and recovery.

The QPS having considered Dr Gundabawady's Report (dated 11 November 2014) wrote to him on 25 November 2014 in which they sought clarification "in relation to some of the documented information supplied to assist in support Ms Langerak". The QPS attached "additional information on Ms Langerak to assist you formulating responses to the additional questions" that included significant material that would have been available to the QPS at the time of arranging the IME on 9 October 2014 and the failure to have provided that information in the first instance can, in my view, only have occurred through "incompetence" or for more "spurious reasons".

[245]Dr Gundabawady provided a Supplementary Report (dated 1 December 2014) based upon a review of the additional information provided by the QPS without any further involvement of Langerak including not affording her the opportunity to respond to the additional material. In that Report he was required to provide a response to eight questions in all, including:
With the additional information above identifying the support already delivered and current available to Ms Langerak do you still agree with Ms Langerak that her workplace has been unsupportive and not helped her with her condition?
After reviewing the documents provided by yourself outlining support mechanism, I am of the opinion that Ms Langerak has been given all the available support at work.
…
Do you consider the persistent non‑work related psychosocial factors to be the primary cause of Ms Langerak's medical condition and decompensation to the extent of being unable to perform duties in her substantive position?
a) If yes, please identify how ongoing adjustments in the work place will elicit a response in a primarily non‑work related medical condition?
b) What adjustments outside the workplace need to be made by Ms Langerak to ensure improvement in the medical condition?
Non‑work related psychosocial factors are significantly contributing to Ms Langerak's medical condition and decompensation. Ms Langerak is currently in the process of addressing some of the financial stressors by seeking advice. The other adjustments outside the workplace would be participating in social leisure/sport activities.

[246]It is evident that the Supplementary Report drastically altered the findings of the initial report by Dr Gundabawady and in my view the methodology relied upon by him in preparing the second of the reports was substantially unfair in the failure to apprise Langerak of the additional information and the opportunity to respond to such information. The Supplementary Report, in the circumstances, in my view contains findings that would attract less weight in my considerations than the First Report which had the appearance of being balanced in that Langerak and the QPS had equal opportunity to present material from their perspectives.

In respect of the IME conducted on 4 November 2014 it was arranged at the behest of the QPS who had previously refused to accommodate a request from Langerak as far back as 18 July 2014 to be sent for an IME to determine her suitability or otherwise to return to the TPCC. There were no reasons offered by the QPS at the time of rejecting the request however in the course of cross‑examination Horton had suggested there were not enough "red flags" until November 2014 to warrant the expense of an IME although the QPS had reports from Drs Matthews and Kahn which provided medical opinions such a return to would be a negative in terms of her mental health.
After the IME
The evidence indicates that Langerak was still having personal issues with her husband although still turning up for work up until 19 November 2014 when her general practitioner issued a medical certificate stating she was unfit for work.
In the period following the issuing of the medical certificate, specifically 25 November 2014, Langerak was admitted to the Bundaberg Hospital due to issues relating to suspected self‑harm. It would appear that the genesis for this incident was related to personal issues and in any event it was beyond the date of her decompensation in the workplace and the issuing of the medical certificate on 19 November 2014 that had rendered her unfit for duty.
Langerak never returned to the TPCC following her departure on 20 November 2014 and based upon the findings of Dr Gundabawady was offered employment at the Ross River PCYC on a graduated return to work program that was successfully completed with Langerak ultimately returned to general duties.
Was the employment the major significant contributing factor

[251]In the IME undertaken by Dr Gundabawady on 4 November 2014, having reviewed documents provided by the QPS and a history obtained from Langerak he acknowledged there had been a past history of depressive symptoms on the background of work stressors and a previous work incident. At the time of the IME (4 November 2014) he diagnosed according to DSM‑IV‑TR Multi-axial classification system that:

·Langerak had a Major Depressive Disorder, recurrent, current episode severe in partial remission. Anxiety disorder not otherwise specified; and
·Psychosocial and Environment Problems:
-        difficulties in the workplace;
-        poor social support;
-        marriage breakdown; and
-        financial difficulties.

[252]Dr Gundabawady further identified in the report that:
·he agreed with Langerak that her current workplace had not been supportive and was not helping with her condition;
·the difficulties at the TPCC had impacted on her depressive disorder;

·the difficulties she had sustained in the workplace were due to her psychiatric and psychosocial stressors; and

·remaining in her position at the TPCC would affect her recovery.

[253]On the information contained in the IME Report (dated 11 November 2014) which was contemporaneous in respect of her employment in November 2014, I am satisfied that Langerak's employment was the major significant contributing factor to the personal injury that had arisen out of or in the course of her employment at the TPCC.
[254]For reasons disclosed previously in this decision, I prefer the findings of Dr Gundabawady's First Report rather than the Supplementary Report that was provided in circumstances that were not conducive to producing an equitable outcome.
Whether the operation of s 32(5) of the Act excludes the personal injury from compensation
[255]In assessment of the management action of the QPS globally in terms of the evidence in the proceedings, it would be difficult to make a finding that the manner in which Langerak's return to work was handled in the period 16 June 2014 to 6 August 2014 was reasonable management action taken in a reasonable way for reasons that included:

·refusal to accept the medical opinions of Drs Matthews and Khan that a return to the TPCC was not in Langerak's best interests in respect of her health without seeking to obtain their own medical opinion;
·continuing to offer the TPCC as the only return option without genuinely pursuing other placement opportunities; and

·the rejection of Langerak's proposal to be independently medically examined without providing any reasons first made on 17 July 2014.

[256]The conduct of the QPS at this time however is not a matter for consideration as to whether management action had been reasonably taken or otherwise.
[257]The QPS had before them at all times information relating to Langerak's employment with the service and more to the point material that confirmed Langerak's case a history of psychiatric/psychological conditions dating back to 2009 and the (then) most recent incident in April 2014 when she was admitted to the Toowong Private Hospital for six weeks with symptoms of a "mood disorder". They continued to agitate for her return to the TPCC in the face of medical advice to the contrary which had the effect of a protracted absence from the workplace by Langerak whose financial situation at the time was perilous and when faced with the potential review by the QPS of her medical situation described by Casey in an email for 24 July 2014 she decided to return to the TPCC because she had no choice. That advice was:
I am aware that you are going to receive a letter. The content of the letter is to provide you with formal options in relation to your medical condition.
Your permanent restriction is a barrier in returning to work in your substantive position at Townsville Communication Centre.
If you provide me with your mailing address and I can organise for this to be sent to you.

[258]The Case Management meeting of 4 August 2014 resulted in agreement to implement a graduated return to work plan for Langerak at the TPCC and the QPS relied upon the acceptance of the plan by Dr Kahn as giving them the imprimatur to facilitate such return. The evidence around that meeting is contradictory and not assisted by the failure of Casey to take notes to support the evidence given by Kranenburg and herself on their recall of what occurred.
[259]Dr Kahn and Langerak both evidenced that agreement to return to the TPCC was only reached for fear that not to agree, Langerak would be removed from the service, courtesy of a review into her medical condition.
[260]A return to work, is in any event, a return and in this instance it is difficult to make a case that the management action taken after that meeting to return Langerak to the TPCC was not in the circumstances reasonable management action taken in a reasonable way given Dr Kahn's approval, although the conduct of the QPS is questionable when considered against the comments of Hall P in WorkCover Queensland v Kehl[1] where he stated:
[1] WorkCover Queensland v Kehl [2002] 170 QGIG 93
There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer. It is not a matter of suggesting that management should speculate about the psychology of each of its workers if they are engaging in management action which may impact upon particular workers, or should require psychological evaluation of its workers. It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision.

[261]There are in my view however two areas of the QPS management of Langerak's return to the TPCC on 6 August 2014 and onwards that was not reasonable management action taken in a reasonable way by the QPS in connection with Langerak's employment, that would enliven the operation of s 32(5) of the Act to not exclude her psychiatric/psychological disorder from being compensable. They were:

·the failure to provide an adequate level of training to Langerak on her return to the TPCC in August 2014 to ensure that she was fully prepared to undertake her designated role was a blight on the management action of the QPS particularly as there was agreement reached at the Case Management meeting of 4 August 2014, according to Dr Kahn's notes of the meeting, that stated an "endorsed return to training as a good part of her treatment plan". Langerak complained of inadequate training being provided and relied on the lack of such training as the reason she had failed to reach the acceptable standard in respect of 12 of 16 sample calls requiring her to meet with Hussey and Doyle in a performance review type meeting; and
·the failure of the QPS through Hussey to act upon allegations of bullying by Child and Hoare particularly in circumstances where he was aware of a history of previous complaints against Child and with the full knowledge of both subject persons conduct in the workplace. It was totally incomprehensible that even the most basic action of at least raising the allegation with Child or Hoare was ignored with the effect they were free to continue to act in any manner unchecked. Further compounding this situation was Hussey's awareness of Langerak's vulnerability due to her history of mental health issues.

These two areas of unreasonable management action taken in an unreasonable way in the circumstances fit with the findings of Dr Gundabawady's First Report (dated 11 November 2014) where he identified issues impacting Langerak in the workplace.
Findings

[262]On consideration of the evidence, material and submission before the proceedings the following findings are made:

·Langerak at all relevant times was a "worker" pursuant to s 11 of the Act;
·Langerak sustained a personal injury in the form of a psychiatric nature pursuant to s 32 of the Act;

·the personal injury sustained by Langerak arose out of or in the course of her employment with the QPS with the employment being the major significant contributing factor to the injury; and

·the operation of s 32(5) of the Act in relation to Langerak's personal injury is not enlivened to exclude the personal injury from being compensable on the basis of a finding that the management action of the QPS was neither reasonable or taken in a reasonable way in connection with her employment.

[263]The Appeal is upheld and the decision of the Regulator of 22 December 2016 is set aside. The claim for workers' compensation is one for acceptance.
[264]The Regulator is to pay the appellant's costs of and incidental to the appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
[265]I so order.

Details

AGLC: Langerak v Workers' Compensation Regulator [2019] QIRC 35
Case: [2019] QIRC 35
Decision Date: 22 February 2019

CaseChat Overview and Summary

In the case of Langerak v Workers' Compensation Regulator, the court was asked to consider an appeal against a decision by the Workers' Compensation Regulator. The appellant, Langerak, was a Senior Constable of Police who sought workers' compensation for a personal psychiatric injury she sustained while employed. The central legal issues before the court were whether Langerak was a "worker" under the relevant legislation, if the psychiatric injury arose out of or in the course of her employment, and if her employment was a significant contributing factor to the injury. Additionally, the court had to determine whether the management's actions were reasonable and conducted in a reasonable manner.

The court found that Langerak was indeed a "worker" as defined by the legislation. The tribunal also concluded that the appellant sustained a personal psychiatric injury and that the injury arose out of or in the course of her employment. The court further held that her employment was a major significant contributing factor to her psychiatric injury. The management's actions were neither reasonable nor taken in a reasonable way, contributing to the appellant's condition. Given these findings, the appeal was upheld, and the decision of the Regulator was set aside. The claim for workers' compensation was accepted, and the Regulator was ordered to pay the appellant's costs of and incidental to the appeal.

Orders

Orders of the court

1. The Appeal is upheld.

2. The decision of the Regulator of 22 December 2016 is set aside. The claim for workers' compensation is one for acceptance.

3. The Regulator is to pay the appellant'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".Evidence In the course of the proceedings, evidence was provided by 11 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. Witness Lists The witnesses for the appellant were:·Jade Langerak (Langerak);·Dr Brad Matthews (Dr Matthews); and·Associate Professor Bruce Kahn (Dr Kahn). The witnesses for the Regulator were:·Superintendent Glenn Horton (Horton);·Belinda Casey (Casey);·Senior Sergeant Allan Hussey (Hussey);·Inspector John Kranenburg (Kranenburg);·Dr Anand Gundabawady (Dr Gundabawady);·Acting Inspector Shane Bourke (Bourke);·Inspector Denis Fitzpatrick (Fitzpatrick); and·Sergeant Kaz Doyle (Doyle). Note: In 2014 Doyle's surname was Hutchinson.AppellantLangerak Langerak, a Senior Constable of Police stationed at Petrie Police Station, graduated from the police academy on 12 December 2007, gave evidence initially relating to two setbacks of some significance in her career as a police officer. In 2009 whilst stationed at Emerald she, in the early hours of the morning, arrested a woman who was intoxicated and urinating on the front step of the Emerald Police Station. The woman had been in the company of a number of off duty police officers who were also intoxicated and sought to prevent the arrest from going ahead. As a result of Langerak's actions she had been excluded from a particular friendship circle at the station including not being invited to the Christmas party and labelled a "dog". In 2011 some two years after that incident whilst at the Toowoomba Police Station she recalled hearing a group of male officers talking about the Emerald incident. The second setback occurred whilst she was stationed at the Mt Isa Police Station and her husband (at the time) was stationed at the Camooweal Police Station. Her husband had engaged in a relationship in mid‑2013 and despite attempts to reconcile with her husband and work through those issues she eventually left their house in August 2013 "with a couple of pillows, some uniforms and my dog". There was a period where she had nowhere to reside due to being evicted from police accommodation and rent prices in Mt Isa being high. The financial arrangements with her husband were "extremely complicated" due to three rental properties and vehicles that had been purchased. Her husband had been treating her "very badly", she was stressed about finances and not knowing how she would be able to manage the situation. Langerak requested a transfer to Rockhampton, being that she had family and friend support however ended up being transferred to the Townsville Police Communication Centre (TPCC) officially starting work on 3 January 2014. Langerak was excited to commence in the TPCC even though her preferred option was that of general duties officer. From the outset she found the work challenging and compounding matters was that two particular sergeants in the room started to bully and ostracise her, particularly if she made a mistake. Socially the TPCC was isolating for Langerak as she did not really fit in due to the age demographic of the other staff and she had difficulties in maintaining relationships with other people.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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