Nichols v Workers' Compensation Regulator - [2017] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nichols v Workers' Compensation Regulator [2017] QIRC 111
PARTIES:	Corina Nichols (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/76
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	8 December 2017
HEARING DATE:	6 December 2017
HEARD AT:	Brisbane
MEMBER:	Deputy President Bloomfield
ORDERS:	1. Date of decompensation determined to be 3 June 2013. 2. Ms Nichols is to prepare and file a further amended Statement of Facts and Contentions.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological /psychiatric injury – claimed injury over a period of time – whether injury date more readily identifiable – medical certificates, hospital records and information provided by the appellant referred to – date of psychological/ psychiatric injury established as 3 June 2013
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 131, s 258 Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106 Kiesouw v Workers' Compensation Regulator [2017] QIRC 064
APPEARANCES:	Mr C. Nichols, the Appellant. Mr A. Kitchin, Counsel directly instructed by the Workers' Compensation Regulator.

Decision

Ms Corina Nichols first lodged an application for workers' compensation for a psychological/psychiatric injury on 2 June 2014. At the time, she was employed by the Catholic Education Office, Diocese of Toowoomba, as an Office Manager and her injury was said to have been caused by workplace bullying, which commenced shortly after the beginning of her employment in mid-February 2013.
Without traversing the full history of this matter, the present proceedings relate to an appeal by Ms Nichols against a decision of the Workers' Compensation Regulator dated 11 April 2017, in which the Regulator confirmed an earlier decision of WorkCover Queensland to reject Ms Nichols' application for compensation.
In particular, the proceedings involve the determination of the date of Ms Nichols' psychological/psychiatric injury, so as to allow each of Ms Nichols, the Regulator and the Commission as presently constituted to better focus their attention on s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), insofar as it requires the Commission to determine the date Ms Nichols' psychological or psychiatric injury was sustained for the purposes of examining the factors causative of her sustaining that personal injury.
Mr A Kitchin, who appeared for the Regulator, filed submissions on 22 November 2017 in support of his contention that Ms Nichols' psychological or psychiatric injury was sustained on 3 June 2013. In the course of developing his argument supporting that date, he submitted, inter alia:
· the core requirement under s 32 is determining the cause of a personal injury. That requires the Commission to make a determination on what the injury is, when it occurred and what gave rise to it. The latter question can only be answered after the first two questions are answered;
· an injury does not need to be an injury under the Diagnostic and Statistical Manual of Mental Disorders (DSM) in order to amount to an injury under s 32 of the Act.[1];
·…

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 Nichols v Workers' Compensation Regulator

Details

AGLC: Nichols v Workers' Compensation Regulator [2017] QIRC 111
Case: [2017] QIRC 111
Decision Date: 8 December 2017

CaseChat Overview and Summary

The case of Nichols v Workers' Compensation Regulator involves the determination of the date of a psychological injury sustained by the appellant, Ms Nichols, as a result of workplace bullying. The dispute was heard and determined by the Queensland Industrial Relations Commission. The primary legal issue before the court was to ascertain the precise date of the psychological injury, as this was crucial for determining the scope of the evidence that could be considered in relation to the injury and its causation.

The court had to decide whether the date of the psychological injury could be pinpointed with specificity based on the medical certificates, hospital records, and the information provided by Ms Nichols. The court referred to the statutory requirement under section 32 of the relevant Act, which mandates that the Commission establish the date of a psychological injury to ascertain whether it falls within the exclusionary provisions. The court noted that events occurring after the injury cannot contribute to its development.

The court's reasoning was based on the evidence presented, including Ms Nichols' concession that she did not attend work on 3 June 2013 due to her mental state. This date was corroborated by medical evidence showing that Ms Nichols was diagnosed with depression and prescribed anti-depressants by Dr. Eswaran on that day. Given this evidence, the court concluded that Ms. Nichols' decompensation occurred on 3 June 2013. Consequently, any events after this date were deemed irrelevant to the causation of her injury. The court ordered Ms. Nichols to prepare and file a further amended Statement of Facts and Contentions to detail the events that caused or contributed to her psychological injury on 3 June 2013.

Orders

Orders of the court

1. Date of decompensation determined to be 3 June 2013.

2. Ms Nichols is to prepare and file a further amended Statement of Facts and Contentions.

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

In response to a further question from the Commission as presently constituted, Ms Nichols confirmed that she did not attend work on either Monday 3 June or Tuesday 4 June 2013 on the basis that she was not in a state of mind which would have allowed her to go to work. However, she said that her financial and other circumstances, as a single mother with two dependent children, dictated that she needed to attend work on the following day, and thereafter until she was admitted to the Bamal Wing of the Hospital in late October 2013. During the period between early June to late October 2013 she continued to attend the practice of Dr Eswaran and other medical and health practitioners who were providing help and support to her. Consideration and Conclusion As Mr Kitchin noted in his submissions, s 32 of the Act requires the Commission to establish, in matters involving a psychological/psychiatric injury, when and how such injury occurred in order to establish whether such injury might be captured by the exclusionary provisions at s 32(5) of the Act, or not. In this respect, as I noted in Kiesouw[2], events which occur after a worker suffers a psychological/psychiatric injury cannot have contributed to the development of such injury. Consequently, there is a need to identify when an injury occurred so as to only permit material relevant to the development/causation of that injury to be canvassed in an appeal proceeding such as the one commenced by Ms Nichols.[2] Kiesouw v Workers' Compensation Regulator [2017] QIRC 064. Based on the medical evidence referred to above, as well as Ms Nichols' concessions during the proceedings on 6 December 2017 (also canvassed above), I have determined that Ms Nichols' decompensation occurred on 3 June 2013, on which date she:·presented to Dr Eswaran in an upset/crying state, reporting the cause of her distress as workplace bullying;·was diagnosed with Depression by Dr Eswaran*;·was prescribed by Dr Eswaran, and started to take, an anti-depressant; ·presented at the Acute Mental Health Unit at Toowoomba Hospital on the basis that she could not cope; and·was first unable to attend work because of her psychological or psychiatric condition.[*Note: it is now well established that a psychological/psychiatric injury does not need to be diagnosed under the DSM regime to be accepted as an injury under the Act.[3]][3] Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106. In terms of the matters I am required to consider pursuant to s 32 of the Act, events which might have occurred after 3 June 2013 are not relevant in terms of the causation of Ms Nichols' psychological or psychiatric injury and, as such, cannot be considered as part of the present appeal. Given my findings as to the date of her psychological or psychiatric injury, Ms Nichols is hereby directed to prepare a Further Amended Statement of Facts and Contentions (Form 9A) which describes the events and circumstances she asserts caused, or contributed to the causation of, her psychological or psychiatric injury on 3 June 2013 and to file it in the Industrial Registry, and serve it on the Regulator, by 4:00pm on Friday 19 January 2018.