Martyn v Workers' Compensation Regulator
[2016] QIRC 99
•23 September 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Martyn v Workers' Compensation Regulator [2016] QIRC 099 PARTIES: Martyn, Deborah (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2014/34 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 23 September 2016 HEARING DATES: 19, 23, 24 September 2014 (hearing dates) 4, 5, 6 and 7 May 2015 (hearing dates)
29 May 2015 (Respondent's submissions)
29 June 2015 (Appellant's submissions)
24 July 2015 (Submissions in Reply)HEARD AT: Brisbane MEMBER: Industrial Commissioner Knight ORDERS: 1. The appeal is dismissed.
2.
The decision of the Regulator dated 6 January 2014 is confirmed.
3.
The Appellant is to pay the Respondent's costs of and incidental to, the appeal to be agreed or, failing agreement, to be subject to a further application to the Commission.
CATCHWORDS:
WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury arose out of or in the course of employment - teacher - claims of physical and sexual assault - psychological injury - post traumatic stress disorder - depression - whether employment a significant contributing factor - whether reasonable management action taken in a
reasonable way - appeal is dismissed. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32
Industrial Relations Act 1999, s 329
McDonald v Q-COMP (2008) 188 QGIG 180.Eric Martin Rossmuller AND Q-COMP
(C/2009/36) - Decision <
Kudryavtseva v Simon Blackwood (Workers'Compensation Regulator [2015] QIRC 053
Newberry v Suncorp Metway Insurance [2006]
QCA 48
Davis v Blackwood [2014] ICQ 009
Keen v Workers' Rehabilitation and Compensation Corp (1998) 71 SASR 42
Prizeman v Q-COMP (2005) 180 QGIG 481
WorkCover Queensland v Kehl (2002) 70 QGIG
93
Bowers v WorkCover Queensland (2002) 170
QGIG 1
WorkCover Queensland v Heit (2000) 164 QGIG
121
O'Brien v Q-COMP (2007) 185 QGIG 383Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR
437Kuenstner v Workers' Compensation Regulator [2016] QIRC 083
WorkCover Queensland v Buchanan (2000)
QGIG 124
Q-COMP v Riggs (2005) 179 QGIG 251
Boyd v Q-COMP (2005) 180 QGIG 1129APPEARANCES: Ms T. Ryan, Counsel, directed instructed by Mr
Dennis, for the Appellant.
Ms J. McClymont, Counsel, directly instructed by
the Workers' Compensation Regulator.Decision [1] Ms Deborah Martyn, a science teacher, has lodged a notice of claim for damages with Workcover Queensland stating she suffered a psychological injury in the form of a post- traumatic stress disorder due to incidents which occurred at the Forest Lake High School (the school) during the period 30 October 2009 to 31 December 2011. Essentially, Ms Martyn claims her psychological or psychiatric injury arose as a result of a number of sexual and physical assaults perpetrated by a number of male students during this period.
[2] On the 20th of February 2012, Ms Martyn collapsed at the school. Ms Martyn was transported to the Wesley Hospital where she was treated for hypertension, tachycardia and dizziness. Her health continued to decline throughout 2012 to the extent she was unable to resume her role as a teacher. Ms Martyn subsequently lodged a workers compensation claim for damages on 21 November 2012.
[3] WorkCover subsequently rejected the claim for damages. On review, the Regulator confirmed WorkCover's decision to refuse Ms Martyn's claim. Ms Martyn is now appealing the Regulator's decision, arguing her employment was a significant contributing factor to the onset of her post-traumatic stress disorder. She also contends the management action taken by the school in response to the alleged incidents was unreasonable and/or taken in an unreasonable way.
[4] Ms Martyn has provided the Commission with a list of six stressors from 2009 until November 2012 which she says contributed to her post-traumatic stress disorder.
Issues for Determination
[5] There is no dispute between the parties that Ms Martyn is a "worker" in so far as it is defined in the relevant legislation. Likewise the parties agree she has sustained a psychological injury.
[6] The questions that must be considered in this matter are:
whether the workplace stressors nominated by Ms Martyn played a significant
role in giving rise to her psychiatric condition; and whether the actions contained within the nominated stressors were unreasonable management action or reasonable management action taken by her employer in an unreasonable way. Nature of the Appeal and Relevant Authorities
[7] The Appeal is conducted as a hearing de novo and the onus rests with the Appellant, on
the balance of probabilities. The applicable legislation is the Workers’ Compensation
and Rehabilitation Act 2013, as at 2012.
[8] In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator)[1] Neate C considered the authorities in so far as they related to onus, noting:
"Although the onus to be discharged in on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. The mere possibility of an appellant suffering an injury on mere conjecture is not enough. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish (See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited)."
[1] Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator [2015] QIRC 053.
[9] Whether employment is a significant contributing factor to the injury is a mixed issue of law and fact. In Newberry v Suncorp Metway Insurance[2], Keane JA, with whom de Jersey CJ and Muir J agreed, noted "the requirements of s 32 of the WCRA that employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury".
[2] Newberry v Suncorp Metway Insurance [2006] QCA 48.[10] In Kuenster v Workers' Compensation Regulator[3], Neate C made reference to a number of helpful authorities where the question of whether employment was the major contributing factor to an injury was considered, including:
[3] [2016] QIRC 083.
[4] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 [27] citing WorkCover Queensland v
[5] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 [27] citing Boyd v Q-COMP (2005) 180
a. Where events that occurred were misconstrued by the appellant or the appellant imagined incidents, and this misinterpretation was the consequence of an existing condition. In decisions where this factual scenario was examined it was held that the appellant's employment could be a contributing factor but not a significant, or major, contributing factor;[4] b. Where the appellant misconstrues an instruction from their employer and as a result becomes distressed. In circumstances like this it has been held that the appellant's employment would not be a significant contributing factor to the injury. [5]
[11] In circumstances where it is determined the workplace stressors nominated by Ms Martyn played a significant role in giving rise to her psychiatric condition, it will also be necessary to examine whether the actions contained within the nominated stressors were unreasonable management action or reasonable management action taken by her employer in an unreasonable way. The extent and limits of the operation of s 32(5) of the Act, in so far as they are relevant to this matter are well established.
[12] In O'Brien v Q-COMP[6], her Honour Vice President Linnane referred to the Canadian authority of Canadian General Electric Company Limited v The Ontario Labour Relations Board[7] to assist in determining the scope of what is and what is not management action. At page 443 it was stated:
"... It is obvious ... that the essential meaning of the word is to control and direct
and that must obviously include not only administration but direction ofplanning for any particular enterprise..."[6] O'Brien v Q-COMP (2007) 185 QGIG 383.
[7] Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437.
[13] I accept the factors nominated by Ms Martyn relate to management action. The onus also lies with Ms Martyn in establishing that the management action taken by the school in respect of the incidents she alleges to have contributed to her injury was not reasonable or not taken in a reasonable way.
[14] In Prizeman v Q-COMP[8], Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer, in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
[8] Prizeman v Q-COMP (2005) 180 QGIG 481.[15] There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case".
[16] For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility of management action being taken in a reasonable way lies with management. Whether management action was taken in a reasonable way is a question of fact. Reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.
[17] In Davis v Blackwood[9], President Martin, in considering the manner in which the Commission should apply s 32(5) of the Act and determine whether management action was taken in a reasonable way, recently noted:
"Sometimes, that may involve considerations of what else might have been done
but that will be relevant to whether what was done was, in fact, reasonable."[9] Davis v Blackwood [2014] ICQ 009.
[18] In Prizeman v Q-COMP[10], Hall P wrote:
"And it must be remembered that it is a consequence of s 34(5)(b) of the WorkCover Queensland Act 1996 that, in determining whether action was reasonable management action taken in a reasonable way in connection with the worker's employment, it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
[10] Prizeman v Q-COMP (2005) 180 QGIG 481.
[19] In WorkCover Queensland v Kehl[11], President Hall said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case"; and in Bowers v WorkCover Queensland[12], he also wrote:
"The circumstances that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry".
[11] WorkCover Queensland v Kehl (2002) 70 QGIG 93 at 94.
[12] Bowers v WorkCover Queensland (2002) 170 QGIG 1.
[20] Other decisions where consideration has been given to reasonable management action have reinforced:
(a)
what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;" and
(b)
it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."
The Statement Stressors
[21] At the commencement of the proceedings, 15 stressors were nominated by Ms Martyn (Exhibit 11) as contributing to her psychiatric condition. The Statement of Stressors was then condensed to 11 (Exhibit 12) and further reduced during the proceedings to a total of 6 stressors (Exhibit 13). On Day 4 of the proceedings, the representative for Ms Martyn initially flagged the prospect of relying on the first four of the final six stressors set out in Exhibit 13 as causative of her injury, but after some equivocation confirmed the remaining two would also remain in the list of stressors, noting they had "exasperated the situation". It should be noted that at no time was Ms Martyn directed by myself to reduce the list of stressors she chose to rely on for the hearing.
[22] The final list of stressors provided to the Commission and relied on by Ms Martyn was thirteen pages in total and has been reproduced with obvious grammatical errors in Attachment One to this decision. The individual headings within the document describing the six incidents nominated by Mrs Martyn as contributing to the onset of her post Traumatic Stress Disorder are set out below:
Stressor One (21 October 2009) - Ms Martyn threatened with rape by male
senior students; Stressor Two (23 October 2009) - Male students attempt to break into staff
toilets and rape/assault Ms Martyn; Stressor Three (30 October 2009) - Ms Martyn physically assaulted by
senior male students; Stressor Four (9 September 2010) - Ms Martyn sexually/physically
assaulted; Stressor Five (27 May 2011) - Ms Martyn surrounded and physically
attacked by a large group of male students on the oval (first oval attack);
Stressor Six (1 June 2011) - Ms Martyn surrounded and physically assaulted by a large group of male students on the oval (second oval attack)
The Witnesses
[23] The Appellant relied on the evidence of the following witnesses:
Ms Deborah Martyn - Appellant, Science Teacher 2008-2012 Mr Kelly Dixon - Union Delegate, Teacher, Forest Lake High School Ms Helen Vaughan –-Teacher, Forest Lake High School: 2008-2010 Dr Sonya Stemper - General Practitioner, Stellar Medical Centre Ms Alison McColl - Consultant Psychiatrist Dr Dominique Hanna - Consultant Psychiatrist Dr Robinson - Consultant Psychiatrist
[24] The Respondent relied on the evidence of:
Ms Heather Varcin - Former Principal, Forest Lake High School Ms Helen Hall - Deputy Principal, Forest Lake High School 2009 Ms Marilyn Hamill - Deputy Principal, Forest Lake High School - Current Ms Cheryl Harvey - Deputy Principal, Junior Secondary, Forest Lake High
School Mr Anthony Thomas - Groundsman, Forest Lake High School: 2009 - 2013 Ms Amanda Nuell - Head of Science, Brisbane State High (previously Head
of Science, Forest Lake High School: 2000 - 2010) Mr Carapeto - Science Teacher, Forest Lake High School Ms Joanne Francis - Associate Deputy Principal, Forest Lake High School Dr Varghese - Consultant Psychiatrist
Stressor One (21 October 2009) - Ms Martyn threatened with rape by male senior
students[25] Ms Martyn told the Commission she was threatened with rape on the 20th of October 2009. She described how she was moving across a walkway at the school when she noticed five or six boys sitting on a bench to the left of the walkway. Ms Martyn heard
one of the bigger boys in the group say, "There she is bro… That's the one. That's the one I want to fu-k. Will you help me get her? I want to hump her. That’s the one I want
to hump."
[26] Ms Martyn said she was sure the boy was staring straight at her when he made the comments. She said she didn't report the incident immediately because she didn't know how to respond to the situation.
[27] Ms Martyn provided the Commission with a summary of the incident which she said was attached to a One School Report she prepared and submitted to Deputy Principal, Helen Hall in early November 2009. The description of the incident contained in this document noted:
"Incident 1: 20/10/2009 As I was walking to the main office via going past the canteen area from Freeman POD staff room, a large group of male students made comments to and about me of a sexual nature ('I want to ---- her', 'I am going to - --- her' and 'I would really like to hump that' and 'I am going to hump that'. I ignored these comments and continued into the main office."
[28] Under cross-examination, Ms Martyn explained the absence in the One School Report of some of the more threatening comments she had included in her evidence to the Commission was due to being pushed by Ms Nuell, a senior colleague, to keep her report brief. There were also a number of inaccuracies in the dates contained in the One School Report. Ms Martyn explained the dates in the attachment in the One School Report were 'guestimates'.
Stressor Two (23 October 2009) - Male students attempt to break into staff toilets and rape/assault Ms Martyn
[29] Ms Martyn told the Commission the attempted rape took place in the teachers' toilets at the back of the student canteen a few days after the initial sexual comments described in Stressor One were made. She was unsure of the date on which the incident occurred, but recalled submitting a report through the OneSchool reporting system on or around 4 November 2009.
[30] Ms Martyn's evidence was that she was crossing over a walkway when she noticed the same group of boys who were involved in the previous verbal threats of rape sitting to the left of the walkway. She recalled walking towards the staff toilets which were located behind the canteen. They were key-locked and self-closing. She used a key on a lanyard around her neck to unlock the toilet building and recalled forcibly slamming the door behind her. After this, she entered the toilet cubicle.
[31] Whilst Ms Martyn was in the toilet she heard loud footsteps on the path outside the toilet block. She recalled hearing a banging noise and the handle to the door being turned
and someone saying, "She’s in there, bro. She’s in there, bro. She’s gone in there."
[32] After a few minutes in the toilet, Ms Martyn said she heard a female voice call out to whoever was outside the toilet block asking them to move on. She said that although the bell rang, she wasn't able to move because she was so scared. Eventually, Ms Martyn said she moved out of the toilet cubicle, washed her face and moved towards her final class for the day.
[33] Ms Martyn provided the Commission with a summary of the incident which was attached to a One School Report she said she prepared at the request of Ms Hall in early November 2009. At the time, Ms Martyn described the incident in the following terms:
"Incident 2: 26/10/2009 On my way to use the toilets behind the canteen I had to tell a group of male students (the same males as mentioned above) to move off the walk bridge. I then continued to the toilet. Comments were made at this point of time about me between the above mentioned male students. Whilst using the toilet, the door of the toilet was attempted to be opened with some force. At the same point of time, I also heard male voices talking and laughing outside the toilet."
[34] Under cross-examination, Ms Martyn confirmed the date she initially proposed on which the attempted rape occurred was not accurate, indicating instead that the incident took place on the 23rd of October 2009.
[35] Ms Martyn told the Commission she was under duress and quite stressed at the time she prepared the attachment to the One School Report. She repeatedly explained that this was why there were a number of inconsistencies between her verbal description of the incidents to the Commission and the incident reports contained in the attachment to the One School Report which had been submitted in 2009. Ms Martyn claimed Ms Hall, the Deputy Principal, had placed her under duress. She also said there was limited time and space to include all of the details of the incidents in the attachment in circumstances where Ms Nuell was standing behind her and hurrying her up.
[36] Ms Martyn clarified that she had heard one male voice, which was louder than the others making the comments outside the toilet building, but that she also heard other males. She said the reason she did not report the incident to the school immediately after it
occurred was because she was terrified and didn’t know what to do.
[37] Other explanations provided by Ms Martyn in respect of the inconsistency between the details in the various list of stressors she had provided to the Commission over time and her subsequent description of the incidents was due to a typographical error on the part of someone else who typed the document for her. Ms Martyn explained she had not carefully checked the stressors she submitted to the Commission because she was so unwell at the time.
Stressor Three (30 October 2009) - Ms Martyn physically assaulted by male students
[38] Ms Martyn told the Commission she was physically assaulted by a student from the school on 30 October 2009. She recalled walking across a walkbridge with a teaching colleague, Helen Vaughan, when a large Polynesian student who was walking in the opposite direction appeared to move from one side of the walkbridge over to Ms Martyn's side and purposely barge into her shoulder. Ms Martyn said her colleague, Ms Vaughan called out to the student as he walked by, but he just laughed and continued in the opposite direction.
[39] Ms Martyn said the contact with the student was so strong it resulted in her taking three steps backwards. She recalled feeling severe pain in her shoulder. She said that in combination with the previous incidents involving threats of rape and attempted rape, the shoulder barge incident left her feeling very anxious and scared.
[40] Ms Martyn provided the Commission with a summary of the incident which she said was attached to and submitted with the One School Report she prepared in early November 2009 after meeting with Ms Hall to discuss her concerns. The description of the incident at the time noted:
"Incident 3: 30/10/2009 - When moving to my period 4 class walking over the bridge (from Freeman POD to senior science labs on the left hand side), I saw some of the above mentioned group of male students also walking on the walk bridge (right hand side) in the opposite direction. When Lui Teomatavui saw me he nudged Lawrie Grounds and some of his other mates, they then proceeded to change to the other side of the bridge making contact with my shoulder as they walked passed. At the time comments were also exchanged such as 'there she is'
'that’s the one'."
[41] Later, under cross-examination Ms Martyn was adamant the walkway incident in which she was barged in the shoulder by a student occurred on 23 October 2009. In some detail, she specifically recalled how she had a very sore shoulder when she went out to dinner with her husband for her anniversary later that night. On being reminded that she had previously nominated the 30th of October 2009 as the date of the shoulder barge incident, Ms Martyn said she had did have a sore shoulder on the night of her anniversary (the 23rd of October) but wasn't able to recall why it was sore.
[42] Under cross-examination Ms Martyn confirmed the shoulder barge incident left her with bruising. She confirmed she was shocked, fearful and immediately began crying on the walkbridge. Ms Martyn explained that she didn't immediately report the incident to the school because she "wasn't going up to see Helen Hall again" but after being reminded she had nominated the date of her initial meeting with Helen Hall as 4 November 2009, which fell after the shoulder barge incident, she explained to the Commission that she was very confused about what to do at the time, which is why she didn't immediately report the incident to the school (emphasis added).
[43] Ms Martyn confirmed she did not tell her husband about the incident, nor did she contact the police or report it to her doctor, but later said she couldn't recall if she had told her husband about the incident.
[44] She explained the disparities between the summary of the incident she initially attached
to the One School Report and her verbal evidence to the Commission, (for example –
in the attachment in the One School Report Ms Martyn referred to a student "making contact" with her shoulder, but she later told the Commission a student purposely "barged" into her shoulder with such severity that it caused her to take three steps backwards), occurred because she prepared the report under duress and was told by Ms Nuell to keep it brief.
[45] Ms Martyn explained other inconsistencies between her evidence to the Commission and the various lists of stressors provided to the Commission as typographical errors. On other occasions she either wasn't able to provide an explanation in support of the inconsistencies or explained that she had previously provided a lot of the details to Ms Hall, in a face to face to meeting about the incidents. That aside, Ms Martyn continued to insist the incidents occurred in the manner in which she had described to the Commission.
[46] Ms Helen Vaughan, a teacher at the school between 2008 and 2010, told the Commission she recalled an incident on the walkbridge where a student walked past herself and Ms Martyn and appeared to deliberately give Ms Martyn a shove. She said he was laughing about it with his mates and it appeared to be deliberate. Ms Vaughan
wasn’t able to recall what happened after that, other than they kept moving towards
their classrooms.
Reporting of Stressors One, Two & Three - One School & Meeting with Ms Hall
[47] Ms Martyn told the Commission she eventually confided her concerns about the incidents to one of her colleagues, Ms Natalie O'Neil. She surmised Ms O'Neil must have told a more senior staff member about their conversation, because shortly after the discussion with her work colleague, she recalled Ms Amanda Nuell, who was the Head of the Science Department at the time, approaching her and suggesting they go and speak to Helen Hall, the Acting Principal.
[48] Ms Martyn recalled sitting in Helen Hall's office whilst she reported the incidents outlined in Stressors 1 - 3. She said she remembered asking Ms Nuell to stay with her whilst she spoke to Ms Hall. Ms Martyn's memory of the meeting was that Ms Hall didn't appear to be too interested in her story and didn't write anything down during the meeting. Instead, she asked Ms Martyn to prepare and lodge an incident report on the One School system and told her they would look into it.
[49] Ms Martyn's evidence to the Commission was that Ms Hall's verbal response to her complaint was that it was all her (Ms Martyn's) fault and that "I brought it on myself, I
encouraged these boys because I didn’t turn around and face them at the time and
confront them". She recalled Ms Nuell putting her arm around her and apologising for
Ms Hall's comments after the meeting had concluded.[50] Under cross-examination, Ms Martyn acknowledged she had previously made references in other stressor documents to Ms Hall providing her with assurances during the meeting where she detailed the manner in which it would be managed, but had since removed those comments from the refined and final list of stressors.
[51] After her meeting with Ms Hall, who was the Acting Principal at the time, Ms Martyn said she and Ms Nuell accessed a shared computer in a staff room so she could lodge the incident on the One School reporting system. She recalled Ms Nuell standing behind her, advising her to keep it brief, not to go into too much detail and to put in a 'guesstimate' of the relevant dates.
[52] An extract from the One School database provided to the Commission by Ms Martyn was also accompanied by a separate attachment she said had prepared in November
2009, which included a description of the incidents complained of in Stressors One –
Three.
[53] Ms Helen Hall was Acting Principal at the school at the time of the alleged incidents, but had since transferred to another school. She had no recollection of the events described by Ms Martyn. She was unable to recall the meeting with Ms Martyn or Ms Nuell. Ms Hall confirmed that no teacher had ever reported to her that they believed they were at risk of rape or sexual assault. She was confident that where words such as rape or sexual assault were raised in a conversation by a teacher, that she would have remembered them and acted on them.
[54] In response to the suggestion that Ms Martyn had said she had failed to respond to the complaints about the threat of rape and sexual assault, Ms Hall noted:
"That's absolutely crazy. If she'd come to my office and reported a threat of rape
and an assault and an attempted assault, which is clearly what the – the second
incident is, you know, at the very least I would have spoken to the principal about it. If the principal wasn't there, I would have spoken to the deputy principal about it. You know, I certainly would have not done nothing about it."
[55] Ms Hall was unable to recall any meeting that may have taken place with Ms Martyn in relation to the incidents. She was also unable to directly recall the incidents being reported by Ms Martyn. She acknowledged that at some point she must have responded to the One School Report lodged in early November 2009, in circumstances where it was clear she had made some notes in the follow-up section of the document. In it, she had made a note that she had banned a group of boys from sitting near the walk bridge area for the remainder of year.
[56] A follow-up summary at the end of the document, contains an entry from Ms Helen Hall dated 6 November 2009 with the following details:
"Spoke to Lui and the rest of the group about this. All boys indicated the
comments were directed towards "hot" girls – not the teacher. The look of surprise
on their faces appeared to be genuine and they appeared and indicated they were surprised and would never speak to a teacher like this. All boys have agreed to move away from the area for the remainder of the year."
[57] Ms Hall told the Commission the follow up notes in the report suggested the boys had indicated the comments had been made about some other students rather than Ms Martyn.
[58] Ms Hall's evidence was that although she could not recall the incidents complained of by Ms Martyn, the One School follow up notes indicated she had clearly taken steps to respond to Incident One raised in the One School Report, by requiring the boys associated with making the comments (as they were initially reported in the One School notes by Ms Martyn) to move away from the area near the walk bridge for the rest of the year. Based on her general approach to such matters Ms Hall indicated she would have spoken sternly to the boys about their language. They also received a warning.
[59] Ms Hall appeared to have no recollection of being provided with a separate attachment to the initial One School Report dealing with Incident One. In circumstances where she had entered in follow up notes for Incident One which dealt with the initial stressor, Ms Hall appeared to question whether the attachment containing a description of the other two incidents was included with the One School Report at the time it was submitted.
[60] Ms Hall's evidence was that she would never have spoken to a teacher and suggested she had "brought it on herself", as claimed by Ms Martyn, noting that such a claim was ridiculous.
[61] Although Ms Hall had no independent recollection of the incidents complained of by Ms Martyn, she described to the Commission the steps she would have taken in circumstances where a serious complaint of rape or threatened rape was raised by a teacher, noting she would have suggested the police be called in a situation where she considered a teacher had been threatened with rape.
[62] Under cross-examination Ms Martyn recalled Ms Anne Yuros contacted her to provide feedback in respect of the investigation, but that she never received a direct follow-up from Ms Hall in respect of the her complaint.
[63] Ms Amanda Nuell, Head of the Science Department at the time of the alleged incidents, told the Commission she was unable to recall ever accompanying Ms Martyn to a meeting with Ms Hall, where an allegation was made that students had made rape threats or physically assaulted Ms Martyn. She agreed that such a meeting would have been memorable had such an allegation been made, but was unable to recall any conversations with Ms Martyn or Ms Hall where a complaint of this nature had been raised.
[64] Ms Neull told the Commission she had no recollection of any of the incidents or students complained about by Ms Martyn in the context of alleged threats of rape or threats to her safety. She was also not prepared to accept Ms Hall would have made comments to the effect that Ms Martyn had somehow encouraged the comments the boys had made noting:
"No, and I don’t believe it's of her nature to say – well, in interactions that I've
had with Helen, I wouldn’t attribute that to her."
[65] She was also unable to recall ever seeing Ms Martyn in a distressed state around the period of the alleged incidents, nor was she able to recall Ms Martyn advising her that she would never report an incident again given the nature of Ms Hall's response to her complaints about threatened rape and assault.
[66] Ms Nuell explained to the Commission that it was her practice to assist teachers with their One School Reports. She said it was also possible for the original author of a One School Report to edit the details of the report after the incident had initially been entered, however it would not be possible for someone else to go in and edit the report of another teacher.
[67] Ms Nuell was unable to recall a time where she requested that Ms Martyn ensure her reports on One School were brief, noting it was important to put in specific details so the person to whom the matter was being referred was able to understand the situation. Ms Nuell told the Commission the One School reporting program was quite prescriptive in that it contained drop down boxes and calendars. She described how an author of a report would be asked to select specific dates, locations, buildings and names.
[68] Ms Nuell strongly denied suggesting to Ms Martyn that she not report an incident to the police, or that Ms Martyn choose between going to the police or keeping her job and allowing Education Queensland to undertaken an investigation. She said there were some incidents which could arise at the school where the police would be called straight away.
[69] Ms Helen Varcin, who previously held the position of School Principal at the Forest Lake State High School, told the Commission she was unaware of any reports made by Ms Martyn indicating she had been threatened with rape or that her safety had been threatened.
[70] She told the Commission that had any rape threats been directed to a teacher, of which she was aware, the school would have investigated the incident thoroughly. Ms Varcin explained the school would have initially provided Ms Martyn with support through various sources, including Queensland Teachers Union, followed by a thorough investigation of the incident, but that she was never advised Ms Martyn had been threatened with rape or assaulted.
Stressor Four (9 September 2010) – Ms Martyn sexually/physically assaulted
[71] Ms Martyn told the Commission that just under a year later she was sexually and physically assaulted at the school on or around the 9th of September 2010. She recalled the school bell had rung. As she tried to make her way from the middle school teaching area she ran into a group of boys playing handball as the students were moving off to their own classes.
[72] She recalled a student, Mr Howitt, striking her with both hands directly on her chest. Ms Martyn's evidence was that she fell to the ground as a result of the contact. She said Mr Howitt groped her breast and was sprawled all over her. She recalled pushing him
off and yelling, "Get the f-ck off me, Just get the f-ck away from me. Don’t ever touch
me again!"
[73] Ms Martyn continued on to her next class but told the Commission she was so upset in the classroom it was necessary for two of her senior students to escort her down to the administration area. She recalled Ms Marilyn Hamill, another Deputy Principal at the school, came and spoke to her in a separate room. Her recollection of Ms Hamill's response was that she said something along the lines of, "That boys will be boys. And we won't make an official report on One School about the incident. I will deal with any
irate parents who happen to call up about swearing…but at least it humanises teachers.
It makes them more human to students".
[74] Under cross-examination Ms Martyn acknowledged she was worried she was going to get into trouble for swearing at the student involved in the incident. She confirmed Ms Hamill had reassured her that she understood why Ms Martyn had sworn at the student. Whilst her responses were somewhat unclear at times, Ms Martyn appeared to acknowledge that she had not told Ms Hamill she believed the incident and physical contact between herself and Mr Howitt was anything but an accident.
[75] Ms Martyn initially told the Commission she was sent home from her duties for a few days after the incident. Under cross-examination it transpired her father-in-law had actually died on the 8th of September 2010, the day before the incident with Mr Howitt. As such she had already been absent from the school on bereavement leave on the day before the incident and further leave had already been planned to commence from the following Monday and continued until the 13th September 2010.
[76] Ms Marilyn Hamill, recalled Ms Martyn coming to speak her about the incident. She said Ms Martyn didn't complain about the incident or say that the student had deliberately knocked her over, but instead, was upset because she had sworn at the boy
as he’d gone to help her up. Ms Hamill confirmed Ms Martyn did not mention anything
about being groped by a student or that other students were cheering and yelling at her after the incident. Ms Hamill confirmed Ms Martyn did not collapse, nor did she require first aid after the incident occurred.
[77] Ms Hamill's recollection was that Ms Martyn was quite embarrassed and upset that she had sworn at the student. She recalled Ms Martyn was also upset about her father-in-
law passing away on the previous day and they’d had a conversation about how she
shouldn't be at school in those circumstances. Ms Hamill recalled taking Ms Martyn to her staffroom, where she'd gathered her belongings and gone home to commence her leave.
Stressor Five (27 May 2011) - Ms Martyn surrounded and physically attacked by a large group of male students on the oval (first oval attack)
[78] Ms Martyn told the Commission the first oval attack occurred on the 27th of May, 2011. She recalled being rostered on playground duty when a large group of males came down towards where she was standing near the oval. Ms Martyn noticed that two of the boys were carrying sticks that looked like broomsticks. One of the sticks had gold glitter material on one end and the other stick had silver glitter material attached to one end.
[79] She questioned the boys about being on the oval and asked them to leave the area, but they refused. Ms Martyn's evidence was that two of the boys started lunging at her with the sticks, trying to hit her. She said she thought there were about 12 or 15 boys swarming around her. She remembered trying to protect herself from being hit by the sticks. Ms Martyn recalled thoughts of being raped and killed going through her head at the time of the incident.
[80] Ms Martyn then heard a tractor approach the group and recognised the school groundsman, Tom Thomas, driving the tractor. She asked Mr Thomas to contact administration, advising him she was concerned about the situation. Ms Martyn's evidence is Mr Thomas, who also coached football at the school, told her he would calm the boys down but failed to contact the school administration despite her request.
[81] At the time, Ms Martyn said she felt scared and thought she was going to die. She confirmed she began to cry and that Mr Thomas would have observed her crying. She was unable to say whether these were the same boys involved in the other incidents she had experienced.
[82] Ms Martyn said she made her way to the middle school office and reported the incident to the Senior Deputy Principal, Mr Manny McAuley. She said she was very distraught after the incident. She told Mr McAuley she had been attacked and showed him a piece of gold material that had fallen from the end of one of the sticks. Ms Martyn recalled Mr McAuley advising her he would investigate the situation straight away, but then told her to go and teach her next class.
[83] Ms Martyn told the Commission she entered the incident on the One School Reporting system, but wasn't entirely clear as to the actual date she made the entry. She noted the One School Report included a reference to the 27th of May 2011.
[84] A One School Report summary prepared by Ms Martyn after the incident and provided to the Commission included the following comments:
"On my playground duty 2nd lunch Friday 27/5 I had advised a group (approx 10-
12) of mainly Somoan boys…that the oval and huts were out of bounds in second
lunch…I then got shouted at that they weren't seniors…and they were going to
play footy...then two of the boys both carrying broom sticks…started swirling
their sticks not far from me. The unknown stick holder started moving towards me and lunging towards me as he was swinging it. All the other unknown boys were in the background cheering him on and refusing to move back to their area."
[85] The One School Report provided to the Commission by Ms Martyn makes reference to Tom Thomas arriving on his tractor, whereupon the report notes the boys had started to move away from the area. Ms Martyn says she made her way to the middle school office where she reported the incident to Mr McAuley. Later, in the same One School Report, Ms Martyn notes that she met with Ms Marilyn Hamill who indicated she would investigate the incident.
[86] The follow-up summary records in respect of the incident investigation and outcome note the following:
"All students banned frm (sic) the oval for the remainder of the term – Jason also
did a series of detentions at lunchtime".
[87] Under cross-examination, Ms Martyn was unable to provide an explanation about inconsistencies between various accounts she had previously prepared in other stressor documents in respect of the first oval attack. For example, a prior account of the incident referred to Ms Martyn being struck on the arms and legs by the students. Ms Martyn denied she was struck on the arms and legs, but was unable to explain how this wording had found its way into one of the stressor documents provided to the Commission.
[88] Likewise, she was unable to explain why the One School report containing details about the stick incident on the oval incident contained no suggestion of students screaming abuse in circumstances where her description of the incident to the Commission portrayed a situation where the students were yelling and screaming, making rude and lewd comments and trying to hit her with sticks.
[89] Tom Thomas, the groundsman at the school at the time of the incident, told the Commission he recalled an occasion where some boys were performing the haka on the oval. He thought the sticks the boys were using were taken from an old tree and they were twirling them around, like a baton. He was unable to recall the year he observed them doing the haka, but was able to confirm it was at lunchtime.
[90] His recollection was that there was no conflict between the boys who were performing the haka but he stopped the tractor, hopped off and took the sticks off the boys. He said he had the same responsibility as everyone else to ensure the students were safe and ensure no-one was hurt.
[91] Mr Thomas had no memory of an incident involving Ms Martyn or her being threatened with broomsticks on the oval. He was not able to recall Ms Martyn being present on the oval, nor did he recall any boys thrusting sticks towards her in a threatening manner or observe her crying or hyperventilating on the oval. Mr Thomas told the Commission that had he observed a colleague in this position, he would have provided assistance to that person.
Stressor Six (1 June 2011) – Ms Martyn surrounded and physically assaulted by a large
group of male students on the oval (second oval attack)
[92] Ms Martyn told the Commission the second oval attack took place on or around 1 June 2011, whilst she was on playground duty. She recalled a large group of males approaching her, some of whom may have also been involved in the initial attack. She said the group continued to grow and she recalled footballs being involved.
[93] Ms Martyn's evidence is that she asked the boys to leave the area, but was told to f-ck off. The students continued to play football on the oval. She said one of the students began climbing a tree to retrieve a football that had gotten stuck. She remembered calling the student to come down from the tree. Around the same time she became aware she was being surrounded by more and more students.
[94] Ms Martyn said the students started circling her. Initially, she recalled somewhere between 10 to 12 students being present when she first engaged with the boys, but eventually the group grew to 30 or 40 students. She said there was lots of shouting,
grunting and yelling. Ms Martyn's evidence is the students were close to her – charging
her, bumping into her. She said she froze at one point, but could feel herself getting hit.
She said some students were telling her "…we’re going to get you, Miss".
[95] Eventually, Ms Martyn said she recalled a Year 9 boy went to call for some help and that's when two other teachers, Jo Francis and Barbara Walker, came running down to the oval area to assist her. She recalled the students dispersed pretty quickly after that, but that Ms Francis was able to grab one of the boys who was then asked to apologise to Ms Martyn.
[96] The school bell had rung by that point and Ms Martyn said she headed off to her next class in a very distressed state. Later, she recalled reporting the incident on One-School.
[97] A One School Report dated 1 June 2011, prepared by Ms Martyn around the time of the incident and provided to the Commission included the following comments:
"…at second lunch today I had a group of approx. 20 unknown students converge
bunching around me as I was asking them all to leave this area… I moved out of
their way where they were getting louder and louder and would not listen to
anything I had to say…The ball kicker then started climbing up the tree to get his
ball. I asked again for him to come down from there…he would not listen. I then
walked to a nearby student playing handball to go straight to MSO for me to get
help…When Ms Francis and Ms Walker arrived she managed to get the students
under control, after a lot had run off."
[98] Under cross-examination, Ms Martyn explained the differing accounts contained in the One School Report about the second Oval incident and her evidence to the Commission were due to the requirement to keep the reports relatively brief and also because she "was not in a very good state by then".
[99] Ms Joanne Francis, an Associate Deputy Principal at Forest Lake State High School told the Commission she was teaching at the school in 2011. She recalled at one point insisting a middle school student, in year eight or nine apologise to Ms Martyn, but she
said this didn't take place on the oval and she couldn’t recall the circumstances in which
the apology was given.
[100] Ms Francis had no recollection of an incident on the oval but confirmed that such an event, had it happened, would have been a memorable occasion. Her evidence was she had never witnessed Ms Martyn screaming or hysterical. She told the Commission it was quite likely she would have remembered an event where students were shouting, grunting and yelling, at a teacher, but she had no recollection of anything like this occurring on the oval or running down to the oval to assist Ms Martyn.
[101] She explained that she avoided running anywhere in the school due to the perception this might create amongst students. Ms Francis was unable to recall Ms Martyn telling her she could no longer do playground duty in the area, nor did she recall observing Ms Martyn in a distressed state.
[102] Under cross-examination, Ms Francis acknowledged it was possible the incidents described by Ms Martyn on the oval could have occurred before she was present, though she confirmed she was completely unable to recall any such event or the subsequent interaction between herself and Ms Martyn after the event in the manner in which it had been described to the Commission by the Appellant.
[103] The follow-up summary records recorded in the One School documentation in response to the report made by Ms Martyn, with Ms Hamill noted as the staff contact, included a reference to all students being banned from oval remainder of the term.
Medical Evidence
[104] Five doctors gave evidence in relation to the nature of Ms Martyn's injury, along with the cause and the timing of the injury.
[105] Ms Martyn called four doctors to give evidence:
(a) Dr Sonia Stemper, a General Practitioner who commenced treating Ms Martyn
on or around February 2011;
(b) Dr Dominique Hannah, a Consultant Psychiatrist, who first examined Ms
Martyn on September 2012;
(c) Dr Alison McColl, a Consultant Psychiatrist examined Ms Martyn on 30 May
2013, as part of a separate QSuper Insurance claim;
(d) Dr Geoffrey Robinson examined Ms Martyn on 27 February 2014 and again
on 18 March 2014. The duration of each consultation was two hours.
[106]The Regulator called Dr Varghese, a consultant psychiatrist, who examined Ms Martyn on 28 November 2012 and prepared a report dated 14 January 2013. A further report was prepared by Dr Varghese on 24 April 2013.
Medical History
[107]There is no question that Ms Martyn has a long and complex medical history. Prior to the incidents occurring at the school which are alleged to have contributed to Ms Martyn's disorder, Dr Sonya Stemper's medical notes contain references to bladder surgery, cervical cancer, a hysterectomy and a breast lump.
[108]According to Dr McColl in 1988, Ms Martyn developed Hashimoto's disease following the birth of her second child. In 1990, she was diagnosed with maturity onset diabetes. In 2005, Ms Martyn was diagnosed with melanosis coli, and in 2011 she was diagnosed with irritable bowel syndrome.
[109]In early July 2010, Ms Martyn was also involved in relatively serious car accident. In the same month she lodged a compulsory third party insurance claim for seeking compensation for pain and suffering, soft tissue neck damage, continual headaches and psychological trauma.
[110]Dr Stemper's notes regarding Ms Martyn's medical history, from 2010 to 2012, also contain references to:
a C6 nerve impingement and a motor vehicle accident in 2010; carpel tunnel syndrome in 2011; urinary continence in 2011; chronic daily headache with vertigo in 2012; and depression
[111]There is no question Ms Martyn collapsed at the school on 20 February 2012 and was transported to hospital. She reported experiencing palpitations, sweatiness and, at the time, thought she might be having a heart attack. She said she was admitted to the Wesley Hospital for fourteen days where she fell under the care of Dr Peter Cain, a Cardiologist. He treated her for hypertension, tachycardia and dizziness.
[112]Subsequent to this event, Ms Martyn says she was admitted to the Greenslopes Private Hospital Hypertension Unit. She reported her cardiologist had been questioning a possible adrenal tumour as the cause of her hypertension and tachycardia. She was also referred to Dr Paul Sandstrom, a neurologist, who diagnosed her with chronic vertiginous migraines.
What was the nature and cause of Ms Martyn’s Injury?
Dr Stemper - General Practitioner
[113]In early August 2012, Ms Martyn was referred by her general practitioner, Dr Stemper to a Counsellor and Art Therapist, Ms Lody Levy, for an opinion and management regarding depression. On or around this time, Ms Martyn had confided in Dr Stemper that she thought she could be experiencing depression.
[114]Dr Stemper told the Commission she had been treating Ms Martyn since February 2011. The GP confirmed she had referred Ms Martyn to a social worker and art therapist, Ms Lody Levy, who diagnosed Ms Martyn with post-traumatic stress disorder.
[115]Under cross examination, Dr Stemper confirmed she had frequently treated Ms Martyn in relation to her health concerns between February 2011 and August 2012. On the materials before the Commission it appears it wasn't until late 2012 that Ms Martyn made any comments to Dr Stemper in respect of any workplace events that may have been impacting her health.
[116]In November 2011, Ms Martyn was referred to Dr Cain. Dr Stemper reported that around this time Ms Martyn had been experiencing symptoms such as frequent headaches, nose bleeds, blurred vision and general lethargy. She said Ms Martyn's symptoms started to become seriously debilitating in 2012, noting she had a chronic daily headache with vertigo. Ms Martyn was subsequently referred to Dr Stowasser for hypertension.
[117] Dr Stemper confirmed she administered a K10 diagnostic assessment on or around 7 August 2012 as a prelude to preparing a mental health plan for Ms Martyn and a referral to Lody Levy, in response to Ms Martyn's view that she might be depressed. Although she had previously noted a family history of depression for Ms Martyn's mother, Dr Stemper was confident Ms Martyn, as far as she knew, did not have a prior history of depression. She was also confident Ms Martyn's thyroid and diabetes condition were being treated and under control.
[118]Although Dr Stemper's responses were not always entirely clear, under cross- examination, she indicated that it was around this period, that both she and Ms Martyn began to link the incidents that occurred at the school with Ms Martyn's physical symptoms. On reflection, she opined that some of Ms Martyn's physical symptoms could have been related to the onset of post-traumatic stress disorder, though she acknowledged such a diagnosis fell outside the bounds of her expertise as a GP.
[119]In a letter to Dr Stemper dated 30 August 2012, Ms Levy noted:
"Deborah told me how physically unwell she feels and that she is currently signed off work. She told me about workplace bullying which seems to have triggered her physical symptoms. I have suggested she is considered for Workcover as her psychological state seems to be indicative of severe emotional distress as a result of bullying at work."
[120]After a series of appointments, it appears Ms Levy subsequently advised Dr Stemper she was concerned Ms Martyn may have post-traumatic stress disorder. In a referral to psychiatrist, Dr Dominique Hannah, dated 7 September 2012, Dr Stemper noted:
"Her main ongoing medical issue is headaches and dizziness, which are debilitating enough that Deborah has accessed her QSuper and has leave of her job as a secondary teacher. I referred Deborah to a psychologist who is concerned she may have PSTD and I wonder if this is contributing to her physical symptoms and how to optimally manage it."
Dr Hannah - Psychiatrist
[121]In correspondence to Dr Stemper dated 19 October 2012, Dr Dominique Hannah, a psychiatrist confirmed Ms Martyn matched all the criteria for post-traumatic stress disorder. In the same letter, Ms Hannah noted:
"Given the nature of the assaults and threatening behavior, the severity of her psychological symptoms and the timing of the onset of her physical symptoms, I consider that it is likely her headaches and dizziness are somatic manifestations of her trauma syndrome and I have completed Workcover forms reflecting this."
[122]Dr Hannah told the Commission she had been treating Ms Martyn since September 2012. Dr Hannah was of the view Ms Martyn exhibited a number of features that were more consistent with anxiety and post-traumatic stress disorder, rather than depression.
[123]In a report prepared for Q-Super dated 19 September 2013, Dr Hannah reported Ms Martyn had continued to experience ongoing incapacitating symptoms related to post- traumatic stress disorder including depressed and anxious mood. She noted Ms Martyn had reported flashbacks and feelings as if the events were reoccurring.
[124]Dr Hannah said her diagnosis of Ms Martyn's post-traumatic stress disorder was determined utilizing the DSM-IV-TR, which were the diagnostic criteria in place at the time she assessed Ms Martyn.
[125]Based on the history provided to her by Ms Martyn, it was her opinion the Appellant was re-experiencing flashbacks and nightmares associated with incidents in her workplace. Dr Hannah explained Ms Martyn was fearful of being raped noting that one of the principal criteria for post-traumatic stress disorder required exposure to a traumatic event, or a circumstance where the person believes they are at threat of experiencing that event.
[126]Other significant events Ms Martyn had described to Dr Hannah included an incident on the oval which involved a number of students with broomsticks and resulted in her feeling threatened. In a further incident relayed to Dr Stemper, she had described a student assaulting her as she was walking down a corridor.
[127]Dr Hannah was of the opinion that incidents including the death of Ms Martyn's mother, her husband's medical problems and the existing hypothyroidism she was experiencing were unlikely to have contributed to her post-traumatic stress disorder.
[128] Under cross-examination, Dr Hannah acknowledged that as Ms Martyn's treating psychiatrist she accepted the truth of her patients' comments in respect of their description as to how events they allege to have contributed to their health symptoms may have occurred. She also confirmed she did not review any other independent reports or information from the school or other sources in respect of the incidents Ms Martyn described to her.
[129]Dr Hannah confirmed Ms Martyn's physical symptoms and eventual decompensation in 2012 may have been due to an accumulation of stress over a period of time as a result of the incidents at the school she had described, but also accepted the change in Ms
Martyn’s functioning in early 2012, in circumstances where the school incidents
described to her by Ms Martyn may not have been entirely accurate, could have been due to other factors. She also acknowledged she would have expected Ms Martyn to have made a comment to her general practitioner about the duration of time she had been experiencing symptoms of anxiety at some point during her consultations with her general practitioner.
[130]Dr Hannah acknowledged her diagnosis was made based on Ms Martyn's description of events. Further, that it was possible for a patient to describe an event that didn't actually occur and, in less common circumstances, re-experience events that didn't actually occur.
Dr Varghese - Psychiatrist
[131] In his report dated 24 April 2013, Dr Varghese noted:
[222]On the materials before the Commission, it would appear that Ms Martyn did not make any comments about or references to the incidents which took place at the school or any related psychological anxiety or symptoms that may have arisen as a result of those incidents to any of her treating specialists until some point in 2012.
[223]Prior to this time, Ms Martyn continued to function in her role as a teacher with seemingly no complaints either from the school or herself in respect of her capacity.
[224]In these circumstances I prefer the evidence of Dr Varghese in respect of the nature of Ms Martyn's injury. In his report dated 24 April 2013, Dr Varghese noted:
"At the time I evaluated Ms Martyn, she was suffering from Major Depression with secondary anxiety. She certainly described symptoms of Major Depression and her mental state was consistent with this condition. She is unlikely to suffer from PTSD as a result of her experiences in the school."
[225]Dr Varghese noted that Major Depression is of multifactorial origin, but essentially reached a conclusion that Ms Martyn's depression had been brought about principally by issues unrelated to the workplace. In this regard, I note for the period 2009 - 2012 there were a number of non-work factors unfolding in Ms Martyn's life that may well have contributed to the onset of her depression over time.
[226]Dr Varghese was of the view Ms Martyn's experience of events in her workplace had instead been influenced by the development of a depressive illness with associated depressive cognitions and depressive perceptions in the context of personality and attribution style.
[227]Unlike the other treating specialists, some of whom did not have the benefit of reviewing all of the materials, including the One School Reports provided to the Commission, Dr Varghese considered a number of scenarios, one of which considered a situation where Ms Martyn was embellishing her account of events which unfolded at the school due to the onset and nature of her major depression.
[228]I accept Dr Varghese's opinion Ms Martyn suffers and has suffered depression. Significantly, Dr Stemper, Dr Hannah and Dr Robinson all indicated Ms Martyn suffered from depression, albeit in conjunction with her post-traumatic stress disorder.
[229]In turn, I am of the view, Ms Martyn's Depression significantly interfered with her recall and subsequent description of the incidents to both her treating practitioners and the Commission.
[230]Although it is clear from the One School reports that Ms Martyn did experience certain events at the school which involved students misbehaving and at times being disrespectful and rude during her time as a teacher, I am also not satisfied those events, even as they were initially reported through the One School system, were a significant contributing factor to the onset of her depression.
[231]I accept Ms Martyn sustained a psychiatric injury, however I am not satisfied that Dr Stemper, Dr Robinson, Dr Hannah and Dr McColl could objectively conclude that her employment and in particular the Stressors complained of, led to the onset of post- traumatic stress disorder.
[232]In those circumstances, I find Ms Martyn injury was not a personal injury arising out of, or in the course of employment where her employment was a significant contributing factor to the injury.
Did Ms Martyn's condition arose out of, or in the course of, reasonable management action taken in a reasonable way?
[233]Had I been satisfied Ms Martyn's injury arose out of, or in the course of her employment and her employment was a significant contributing factor to the injury, I would have been obliged to dismiss the application if I had found Ms Martyn's psychiatric or psychological disorder arose out of in the course of reasonable management action taken in a reasonable way.
[234]In this matter however, it is not necessary to make a finding in respect of the exclusionary provisions of s 32(5) of the Act which, in any event, would have clearly applied (as set out in each of the findings of the Commission for each Stressor) if it had been found that Ms Martyn's injury had fallen within the meaning of "injury" in s 32(1) of the Act.
[235]I have been unable to find Ms Martyn has discharged the necessary onus in proving on the balance of probabilities that her claim is one for acceptance.
[236] The Appeal is dismissed.
[237] The Appellant is to pay the Regulator's cost of, and incidental to the Appeal.
[238] Order accordingly.
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
| Martyn v Workers' Compensation Regulator [2016] QIRC 099 | Attachment One (Exhibit 13) |
Buchanan (2000) QGIG 124.
QGIG 1129.
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2
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