McEnearney v Workers' Compensation Regulator - [2017] QIRC 101

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	McEnearney v Workers' Compensation Regulator [2017] QIRC 101
PARTIES:	(Sue-maree McEnearney) (appellant) v Workers' Compensation Regulator (respondent) Stephen Laverick (intervenor)
CASE NO:	WC/2015/118
PROCEEDING:	Appeal against decision
DELIVERED ON:	21 November 2017
HEARING DATES: WRITTEN SUBMISSIONS	30 - 31 January, 1 - 10 February, 3 October 2017 Appellant – 2 May, 23 October 2017 Respondent – 19 June 2017
MEMBER:	The Hon L Kaufman, Deputy President
ORDERS :	1. The appeal is dismissed. 2. The decision of the respondent dated 2 April 2015 is confirmed. 3. The appellant is to pay the regulator’s costs of and incidental to this appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of the Workers' Compensation Regulator – where appellant has suffered a psychological or psychiatric injury – where injury arose out of or in the course of employment – where appellant alleged employer engaged in fraudulent activities and misleading and deceptive conduct – whether employer instructed the appellant to act fraudulently – whether employer failed to provide sufficient personnel – whether employer failed to properly remunerate and unreasonably withheld remuneration from the appellant – whether employer bullied and harassed the appellant – whether employer failed to act or act appropriately on reports of the appellant – where injury excluded by virtue of s 32(5) – reasonable management action taken in a reasonable way.
CASES:	Industrial Relations Act 1999 ss 273, 274 Workers' Compensation and Rehabilitation Act 2003 ss 32, 558(3) Briginshaw v Briginshaw (1938) 60 CLR 336 Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007 Carlton v Blackwood [2017] ICQ 001 Gambaro v Workers' Compensation Regulator [2017] ICQ 005 Blackwood v Toward [2015] ICQ 008
APPEARANCES:	Ms S McEnearney in person Mr P O'Neill, of counsel, instructed directly by the Workers' Compensation Regulator Mr L Hall, solicitor, for Mr Stephen Laverick, intervening

Reasons for Decision

Ms Sue-maree McEnearney has appealed the decision of the Workers' Compensation Regulator to confirm WorkCover's rejection of her application for compensation. The appellant made her application for compensation to WorkCover on 11 September 2013. That application was rejected on 15 October 2013. The appellant filed her application for a review of WorkCover's decision on 16 January 2014. The regulator confirmed the decision of WorkCover on 25 February 2014. WorkCover's initial decision, and the regulator's review and confirmation, held that Ms McEnearney's initial application for compensation had been made out of time.
Ms McEnearney appealed the regulator's decision of 25 February 2014 to this Commission. The regulator conceded that appeal and the matter was remitted to WorkCover to decide the application on its merits. On 9 September 2014, WorkCover rejected the application on the basis that Ms McEnearney’s psychological or psychiatric injury had arisen out of, or in the course of, reasonable management action taken in a reasonable way by her employer. An application for review was filed on 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QIRC 101
Decision Date: 21 November 2017

CaseChat Overview and Summary

The matter before the court was an appeal by the appellant, Mr. McEnearney, against a decision of the Workers' Compensation Regulator. The decision denied Mr. McEnearney's claim for workers' compensation for a psychological or psychiatric injury sustained during his employment. The primary dispute was whether the appellant's psychological injury arose out of or in the course of his employment, and if it was excluded by specific statutory provisions.

The court was required to determine whether the appellant's injury was caused by reasonable management action taken in a reasonable way, as per section 32(5) of the relevant legislation. The appellant argued that his employer had engaged in fraudulent activities, misleading and deceptive conduct, and had failed to provide adequate personnel, remuneration, and support. He also claimed that he was bullied, harassed, and that the employer did not act appropriately on his reports. The respondent, the Workers' Compensation Regulator, maintained that the appellant's injury did not meet the criteria for compensation as it was due to reasonable management actions.

The court found that the employer's actions, although possibly unreasonable, constituted reasonable management action taken in a reasonable way. The appellant's claims of fraud, misleading and deceptive conduct, and other grievances were not sufficient to establish that the injury arose out of or in the course of employment in a compensable manner. The court concluded that the decision of the Workers' Compensation Regulator should be upheld and dismissed the appeal. As a result, the decision dated 2 April 2015 was confirmed, and the appellant was ordered to pay the respondent's costs of and incidental to this appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the respondent dated 2 April 2015 is confirmed.

3. The appellant is to pay the regulator’s costs of and incidental to this appeal to be agreed or failing agreement to be the subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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