Roberts v Workers' Compensation Regulator - [2023] QIRC 76

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Roberts v Workers' Compensation Regulator [2023] QIRC 076
PARTIES:	Roberts, Karen Lois (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2020/90
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	6 March 2023
HEARING DATE:	23, 24, 25 & 26 July 2021
MEMBER:	Dwyer IC
HEARD AT:	Brisbane
ORDER:	1. The appeal is allowed. 2. The decision of the Regulator dated 25 June 2020 is set aside and substituted with the following decision – That Ms Roberts' application pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld) is one for acceptance. 3. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychological injury – whether injury arose out of or in the course of employment – whether the employment was the major significant contributing factor to the psychiatric injury - whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment – appeal allowed
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 11, 32, 132A
CASES:	Blackwood v Adams [2015] ICQ 001 Blackwood v Mana [2014] ICQ 027 Carlton v Blackwood [2017] ICQ 001 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301 Q-Comp v Rowe, [2009] ICQ 32 Rucker v Blackwood [2014] ICQ 028 Simon Blackwood (Workers' Compensation Regulator) v Champman [2016] ICQ 11 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10 State of Queensland (Queensland Health) v Q-Comp and Beverly Coyne (2003) 172 QGIG 1447 Yousif v Workers’ Compensation Regulator [2017] ICQ 004
APPEARANCES:	Mr R Hii of Counsel, instructed by Ms K Avery of Kare Lawyers for the Appellant Mr S.P Gray of Counsel, instructed by Ms L Shaw of the Workers' Compensation Regulator

Reasons for Decision

Background of the Appeal

Ms Karen Roberts was employed from April 1995 as a teacher with the Department of Education and Training ('the Department'). On 27 November 2019, Ms Roberts lodged an application for the assessment of a permanent impairment pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('the Act') ('the s 132A application'). [1]
[1] Exhibit 1.
In the s 132A application, Ms Roberts particularised her injury as 'anxiety, depression, and post-traumatic stress disorder' and provided the following responses with respect to the date of her injury:
If the event occurred over a period of time:

Date the event period began:

Approx Term 3 2018

Date the event period ended:

April 2019

Date the symptoms began:

Approx. 2018

Date of first consultation with medical practitioner

April 2019

Further,…

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.

Keep reading for free

Create a free CaseChat account to read Roberts v Workers' Compensation Regulator and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QIRC 76
Decision Date: 6 March 2023

CaseChat Overview and Summary

In Roberts v Workers' Compensation Regulator, the appellant, Ms Roberts, appealed a decision of the Workers' Compensation Regulator rejecting her claim for workers' compensation for a psychiatric injury. The case involved determining whether Ms Roberts' injury arose out of or in the course of her employment as a teacher, whether her employment was the major significant contributing factor to the psychiatric injury, whether the injury was excluded under section 32(5) of the Workers' Compensation and Rehabilitation Act 2003, and whether the injury arose out of reasonable management action taken in a reasonable way in connection with her employment.

The court considered whether the scope of facts relevant to the claim should be limited to the particulars of Ms Roberts' claim as described in her s 132A application or whether the broader range of facts and stressors set out in her Statement of Facts and Contentions should be taken into account. The court found that both WorkCover and the Regulator had access to the more comprehensive and expansive factual basis for Ms Roberts' claim, including the report of Dr Andrew Shaw, a Consultant Psychiatrist, who diagnosed Ms Roberts with Post Traumatic Stress Disorder (PTSD) as a result of traumatic events during her employment.

The court also considered the medical evidence presented by Ms Roberts, including evidence from Dr Charles Hur, a general practitioner, and Dr Chaminga Dhanapala, a Senior Psychologist. The court found that there was no evidence to contradict Ms Roberts' accounts of the traumas and the diagnosis of PTSD. The court concluded that the objectively uncontroversial facts of the matter were that Ms Roberts was exposed to multiple traumatic events during her time as a teacher between 2007 and 2019, and that these events caused her to sustain PTSD.

The court found that the traumatic events, with one exception, were not disputed and arose during employment. The court accepted Ms Roberts' evidence regarding an incident on 24 April 2019 despite some factual inconsistencies. The court also noted that Dr Shaw identified no other stressors contributing to his diagnosis other than the repeated traumatic events.

The court found that the appeal should be allowed and that the decision of the Regulator dated 25 June 2020 should be set aside and substituted with a decision accepting Ms Roberts' application pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld). The court ordered that the Regulator pay the Appellant's costs of the hearing in an amount to be agreed, with liberty to apply for a determination on costs by the Commission if the parties cannot agree.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Regulator dated 25 June 2020 is set aside and substituted with the following decision –

That Ms Roberts' application pursuant to s 132A of the Workers Compensation and Rehabilitation Act 2003 (Qld) is one for acceptance.

3. The Regulator pay the Appellant's costs of the hearing in an amount to be agreed. In the event that the parties cannot agree they have liberty to apply for a determination on costs by the Commission.

Background

Background to the litigation

In the circumstances, in the event management action is ultimately relevant to this appeal, it will be for Ms Roberts to demonstrate that any of it causally connected to her injury was unreasonable or taken in an unreasonable way. Scope of facts relevant to the appealIntroduction An issue regarding the scope of facts relevant to the claim emerged during proceedings. In essence, the Regulator's response to the appeal was premised on the proposition that Ms Roberts' appeal should be confined to the particulars of her claim as they were described in the s 132A application. The Regulator contended that the more expansive (and unchallenged) factual assertions set out in Ms Roberts' Statement of Facts and Contentions ('SOFC') were not matters to be taken into account in determining the appeal. Ms Roberts on the other hand sought to rely on the broader range of facts and stressors that were set out in her SOFC. On reflection, it would seem that this issue was of sufficient significance that it ought to have been resolved on a preliminary basis prior to the hearing of the appeal. A determination in favour of the Regulator might have reduced the hearing time of the appeal. Conversely, as is evident from the findings that follow, a determination in favour of Ms Roberts may have caused the Regulator to proceed differently or may have averted the need for proceedings entirely. In the circumstances, efficiency dictates that this question be resolved before consideration of the evidence. Scope of facts At the outset it ought to be noted that at the time of making their respective decisions, both WorkCover and the Regulator had access to (and presumably) considered the report of Dr Andrew Shaw, Consultant Psychiatrist, dated 13 February 2020.[11] In that report, Dr Shaw diagnoses Ms Roberts with Post Traumatic Stress Disorder ('PTSD') and inter alia describes the 'index' traumatic event as an incident in 2007 when Ms Roberts was chased by a student swinging a baseball bat at her head. Dr Shaw described this incident as "highly significant".[12] [11] Exhibit 3.[12] Exhibit 3, page 1 So, despite the rudimentary details and somewhat limited factual scope set out by Ms Roberts in the s 132A application, the more expertly informed details about her claim (including the genesis of her PTSD) were fully available to the decision-makers from the earliest stage of the decision-making process. Following the filing of the appeal, the parties filed material in accordance with directions of the Commission. In particular, each party filed a SOFC which in Ms Roberts' case incorporated her nominated stressors. By comparison to the details contained in the s 132A application, the SOFC filed by Ms Roberts on 21 September 2020 provided a more comprehensive and expansive factual basis for her claim for compensation. In particular, at paragraph 3(a) and (b) of her SOFC, Ms Roberts particularises traumatic incidents said to have occurred between 2007 and 2009, and between 2015 and 2016 respectively. These events include the 2007 'index' event referred to by Dr Shaw in his report.

Evidence

Evidence Before The Court

Following evidence in chief it became apparent that Ms McDonald's evidence was of little value in assisting with the matters in issue. In the circumstances it has not been further considered in this appeal. Medical evidence Ms Roberts called evidence from three medical practitioners. Ms Roberts' medical evidence was the only medical evidence called in the proceedings. Dr Charles Hur Dr Hur is a general practitioner. His qualifications as an expert were not in issue. Dr Hur gave evidence that Ms Roberts had been a patient of his since August 2013. Dr Hur contends that in April 2019 he noticed a change in Ms Roberts' mood and personality.[52] [52] T 2-4, ll 21-32. Dr Hur gave evidence that Ms Roberts was unable to take her mind off the events that were occurring, and that Ms Roberts perceived she was not receiving any support from her employer.[53] On 4 July 2019, Ms Roberts informed Dr Hur of her reliving an event whereby a student swung a bat at her.[54] Following an attendance on 12 December 2019, Dr Hur issued a Workers' Compensation medical certificate dated 12 December 2019, which diagnosed Ms Roberts' injury as 'PTSD from work environment'. The stated cause of injury was 'work as teacher – assault by a student'.[55] Of relevance generally with respect to Dr Hur's evidence is that when Ms Roberts attended in April 2019, she reported her distress was a consequence of a lack of support. Dr Hur recalled Ms Roberts mentioned that she was being "forced" to go to the classes where she did "not feel comfortable on her own".[56] There were no express references to the traumatic events until 4 July 2019. Dr Hur essentially acknowledged that his diagnosis of PTSD occurred after he received the report from Dr Shaw in or about September 2019, but he clearly indicated that given his lack of specialist knowledge he deferred to the opinion of Dr Shaw. He also felt (to the extent he was qualified) that Ms Roberts "fitted in with" the diagnosis. [57][57] T 2-7, ll 35-40.Dr Chaminga Dhanapala Ms Dhanapala is a Senior Psychologist. Her qualifications as an expert were not in issue. Ms Dhanapala's report was tendered into evidence by consent. Despite being issued with a Notice to Attend, she did not attend or give evidence for what was reported as 'cultural reasons'.[58] Notwithstanding Ms Dhanapala's refusal to comply with an order of the Commission for her attendance, the Regulator consented to her report to be tendered into evidence.[59] While I am conscious that both parties have sought to rely (albeit peripherally) on the report of Ms Dhanapala, I am not inclined to give it any weight at all. The parties were put on notice of this possible consequence.[60] Quite apart from the fact that Ms Dhanapala was not able to be questioned or challenged about her conclusions set out in her report, it is a matter of no small concern that she deliberately refused to comply with an order of the Commission for her attendance. While her reasons for non-attendance might be associated with sincerely held beliefs, the lack of any fulsome explanation for her absence leaves a number of questions unresolved.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Having regard to the date of injury, Ms Roberts will need to establish that her employment is 'the major' significant contributing factor. Consideration Introduction It is an unfortunate feature of these appeals that a proposition that is simple at the outset can sometimes be needlessly deconstructed to explore e.g. grounds for exclusion of a claim, to a point where the deconstructed parts entirely obscure the once simple point. Conversely, the over-particularising of a claim by making reference to each and every event recalled unfavourably by a claimant will equally unnecessarily prompt a forensic examination of those events to the point where the genuinely causative factors of an injury are indiscernible. There have been elements of both of these practices in this appeal. The objectively uncontroversial facts of this matter have always been that Ms Roberts was exposed to multiple traumatic events during her time as a teacher between 2007 and 2019. By September 2019, an appropriately specialised medical practitioner had diagnosed Ms Roberts as having sustained PTSD as a direct consequence of those traumatic events. There was no evidence to contradict Ms Roberts' accounts of the traumas. There was no medical evidence to contradict the diagnosis of PTSD. The matter ought to have ended there. Personal injury arising out of employment From the outset, Ms Roberts plainly outlined in her SOFC the traumas to which she had been exposed and identified PTSD as the consequence. An understanding of the aetiology of PTSD has long since ceased to be exclusive to medical experts. It is certainly well understood by the Commission. The particulars of Ms Roberts' claim include serious incidents where she was not only threatened with violence multiple times but was chased by a student and had a baseball bat swung menacingly close to her head. The impact of these repeated traumas unsurprisingly had a serious and compounding affect on her mental health. One hardly requires the expert opinion of Dr Shaw to make the diagnosis of PTSD in the circumstances. To the extent that it is necessary to do so, it seems there can be no doubt the personal injury suffered by Ms Roberts is PTSD. In terms of whether the injury arose out of or in the course of Ms Roberts’ employment, with one exception, the traumatic events are not disputed. Each of these arose during employment. It is noted that there was an apparent conflict in the evidence with respect to Ms Roberts' account of the incident in the classroom on 24 April 2019. While I found Ms Van Zyl to be a credible witness, I note that she was not a direct witness to the alleged event. I accept that there are some factual inconsistencies around the issue but given there is no contradiction of Ms Roberts' account of the incident on or about 24 April 2019. I am content to accept her evidence. For completeness, it ought to be noted that Dr Shaw identified no other stressors contributing to his diagnosis other than the repeated traumatic events.[76] He did give evidence about the significant nature of Ms Roberts' sense of feeling unsupported and the effect of this evidence is discussed below.

Date the event period began:	Approx Term 3 2018
Date the event period ended:	April 2019
Date the symptoms began:	Approx. 2018
Date of first consultation with medical practitioner	April 2019