Neale v Workers' Compensation Regulator - [2023] QIRC 9

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Neale v Workers' Compensation Regulator [2023] QIRC 009
PARTIES:	Neale, Ian (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/123
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	16 January 2023
HEARING DATES:	10 May 2022 to 13 May 2022 5 July 2022 to 7 July 2022 11 July 2022 to 14 July 2022
MEMBER: HEARD AT:	Pidgeon IC Townsville
DATES OF WRITTEN SUBMISSIONS	Respondent's closing submissions filed 24 August 2022
Appellant's closing submissions filed 27 September 2022 Respondent's reply submissions filed 25 October 2022
ORDERS:	1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent dated 7 October 2020 is confirmed. 2. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – appeal against review decision of the Respondent – Appellant made an application for workers' compensation for a psychiatric or psychological injury – decision by WorkCover Queensland to reject application – WorkCover Queensland decision confirmed by Respondent on review –Appellant appealed against review decision of the Respondent to the Queensland Industrial Relations Commission – where it is agreed that the Appellant was a worker – where it is agreed that the Appellant suffered a personal injury – whether Appellant's injury is excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – where the Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment – review decision of Respondent confirmed
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 ss 11, 32, 35, 558
CASES:	Blackwood v Adams [2015] ICQ 1 Blackwood v Mahaffey (2016) 259 IR 137 Bowers v Q-COMP [2002] QIC 8 McMah v Simon Blackwood (Workers' Compensation Regulator) & BHP Billiton Coal Pty Ltd [2014] QIRC 13 Prizeman v Q-COMP [2005] QIC 53 Qantas Airways Limited v Q-COMP [2006] QIRComm 27 Roberts v Workers' Compensation Regulator [2016] QIRC 30 State of Queensland (Department of Agriculture and Fisheries v Workers' Compensation Regulator [2020] QIRC 97 WorkCover Queensland v Kehl [2002] QIC 23 Yousif v Workers' Compensation Regulator [2017] ICQ 4
APPEARANCES:	Mr I. Neale, the Appellant in person. Mr S.A. McLeod KC directly instructed by the Workers' Compensation Regulator

Reasons for Decision
Introduction

Mr Ian Neale (the Appellant) appeals the decision of the Workers' Compensation Regulator (the Regulator) dated 22 June 2021, which confirms the decision of WorkCover Queensland (WorkCover) on 7 October 2020 to reject his application for compensation for a personal injury in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act).
At the time relevant to the appeal, Mr Neale was employed by Queensland Fire and Emergency Services (QFES) as an Occupational Capability Officer in the Emergency Management, Volunteerism and Community Resilience Division.

Scope of this appeal

It is accepted that the Appellant was a 'worker'…

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.

Continue reading Neale v Workers' Compensation Regulator

Details

AGLC: Neale v Workers' Compensation Regulator [2023] QIRC 9
Case: [2023] QIRC 9
Decision Date: 16 January 2023

CaseChat Overview and Summary

In the case of Neale v Workers' Compensation Regulator, the Appellant appealed the decision of the Respondent, affirming a rejection by WorkCover Queensland of his application for workers' compensation for a psychiatric or psychological injury. The primary issue before the Queensland Industrial Relations Commission was whether the Appellant's injury was excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003, given that the injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment.

The court examined the nature of the Appellant's employment, the specific circumstances surrounding the alleged injury, and whether the management actions taken by his employer could be considered reasonable. It was established that the Appellant was a worker and that he had suffered a personal injury, but the pivotal legal issue was whether the injury fell under the exclusion criteria set forth in the legislation. The court noted that the Appellant's personal injury was a result of reasonable management actions undertaken by his employer during the course of his employment, which led to the conclusion that the injury was indeed excluded from compensation under the relevant statutory provision.

The Commission confirmed the review decision of the Respondent, upholding the exclusion of the Appellant's injury from workers' compensation. The reasoning was based on the evidence presented, which demonstrated that the management actions taken by the employer were reasonable and in line with the operational context of the employment. Consequently, the appeal was dismissed, and the decision to reject the Appellant's compensation claim was affirmed.

Pursuant to section 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent dated 7 October 2020 is confirmed. The court also noted that any decision on costs, should the parties be unable to reach an agreement, would be subject to a further application to the Commission.

Orders

Orders of the court

1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent dated 7 October 2020 is confirmed.

2. Failing agreement between the parties, a decision on costs will be 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

Mr Neale's submissions then go completely beyond the scope of this appeal in asking the Commission to make various findings and 'take appropriate measures' against QFES, Camp and Forde to hold them accountable for their actions. Consideration – Complaint against John Forde On the basis of the evidence before the Commission, I am not persuaded that Mr Forde tasked Mr Neale, or others, with cleaning out and washing out houses on Kokoda Street on 9 February 2019. I accept that the instruction was to attend a media event and to have a presence there while videos and photographs were taken. It seems more likely to me that Mr Neale or others took it upon themselves to undertake this work once they were at Kokoda Street and no media presence was apparent. It also seems to me that it was open to Mr Neale to return to base when it was clear that no media presence was in attendance and when he became of the view that members of the team were fatigued and/or the team was not equipped to undertake operational duties involving clean outs and wash outs. Having determined that Mr Forde did not place the team at risk by way of asking Mr Neale and others to attend the media event, it was reasonable for Mr Camp to determine the complaint unsubstantiated and to inform Mr Neale of this. With regard to the management action surrounding the complaint and the process surrounding the complaint, I accept the explanation provided by Mr Camp about the delay in addressing the complaint. It was entirely reasonable, given the operational pressures arising from the flood, for there to be a delay in organising a time for Mr Camp to speak with Mr Neale about his complaint. It was also entirely reasonable for Mr Camp to wait until Mr Neale was back at work following leave to speak with him about the complaint. Mr Neale may not agree with the category given to his complaint. But this does not make the decision to allocate a CaPE 1 to the complaint and forward it to Mr Camp to deal with unreasonable. Further, Mr Neale may have a view that his complaint warranted a large-scale and serious external investigation, but I cannot find that it was unreasonable for the complaint to be dealt with in the way that it was. I do not accept that Mr Camp tasked Mr Forde with investigating the complaint or conducting an investigation interview or fact-finding with Mr Neale. Therefore, the management action surrounding Mr Neale's complaint about Mr Forde was reasonable and undertaken in a reasonable way.Assignment of work and work performance This part of Mr Neale's case can be broken down into a range of specific issues. The Respondent's closing submissions are grouped according to those particular issues. Mr Neale appears to have adopted these same issues and so it is convenient for me to deal with them in this fashion. Mr Neale's evidence was that he is a qualified RCR operator and Mr Forde tasked him with undertaking an RCR audit in relation to Greenvale, Pentland, Charters Towers and Ravenswood. Mr Neale gave evidence about the steps he undertook to complete the audit process.