Shaw v Workers' Compensation Regulator

Case [2022] QIRC 33

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Shaw v Workers' Compensation Regulator
(No. 3) [2022] QIRC 033

PARTIES:

Shaw, Trent
Appellant

v

Workers' Compensation Regulator
Respondent

CASE NO:

 WC/2020/58

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

 10 February 2022

HEARING DATES: 

26, 27 and 28 July 2021

DATES OF WRITTEN CLOSING SUBMISSIONS:

MEMBER:

HEARD AT:

Appellant's submissions, 9 November 2021
Respondent's submissions, 30 November 2021
Appellant's reply submissions, 6 December 2021

McLennan IC

Brisbane

ORDERS:

1.      The appeal is dismissed.

2.      The decision of the Workers' Compensation Regulator is confirmed.

3.     The Appellant is to pay the Respondent's costs of the Hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.
CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – consideration of the psychiatric condition – consideration of when the psychiatric condition was sustained – whether the psychiatric condition arose out of, or in the course of, employment – whether employment was the major significant contributing factor to the psychiatric condition

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 131, s 141, s 545,
s 558

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Fox v Percy [2003] 214 CLR 118

Kavanagh v Commonwealth (1960) 103 CLR 547

Linke v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 181

Morrison v Workers' Compensation Regulator [2016] QIRC 065

Nunanv Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119

R v Butler [2009] QCA 111

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Scofield v Workers' Compensation Regulator (No. 2) [2018] QIRC 103

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447

Workers' Compensation Regulatorv Guymer [2017] QIRC 080

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
APPEARANCES:

Mr T Shaw, the Appellant in person.

Mr P B O'Neill of counsel, directly instructed by the Respondent.

Reasons for Decision

  1. Mr Trent Shaw commenced as Principal of Kin Kin state school (the school; KKSS) in January 2010.  The school serves a small community in the Sunshine Coast hinterland.

  2. In January 2015 KKSS was granted Independent Public School (IPS) status, notwithstanding that the school had been identified for a 'Priority Support Review' only a month prior.[1]

    [1] Exhibit 1, 181.

  3. A tumultuous period for Mr Shaw and the school ensued.

  4. The next four years saw an extended period of departmental support interventions and successive action plans to remediate issues identified,[2] two Ethical Standards Unit investigations and a review of the school's IPS status.

    [2] Priority Support Review, Internal Audit and Follow up Audit Report.

  5. Further exacerbating matters was Mr Shaw's reticence to engage with Ms Janelle Reid, in her capacity as Assistant Regional Director.

  6. The impact of various dysfunctional interpersonal relationships between Mr Shaw and several colleagues also reverberated…

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Details
AGLC
Shaw v Workers' Compensation Regulator [2022] QIRC 33
Case
[2022] QIRC 33
Decision Date

CaseChat Overview and Summary

The case of Shaw v Workers' Compensation Regulator involved the appellant, Mr. Shaw, appealing against the decision of the Workers' Compensation Regulator, which dismissed his claim for compensation for a psychiatric injury. The appellant argued that he had sustained a psychiatric condition that arose from, or in the course of, his employment as the Principal of KKSS. The decision was made by Commissioner Neate of the Queensland Industrial Relations Commission.

The legal issues before the court included determining whether the psychiatric condition was sustained when alleged by the appellant, and whether the condition arose out of, or in the course of, his employment. The court had to consider the relevant statutory provisions, including sections 131 and 141 of the Act, and the case law precedents such as Scofield v Workers' Compensation Regulator (No. 2) and Workers' Compensation Regulator v Guymer. The court also needed to assess if the appellant's employment was the major significant contributing factor to the psychiatric condition.

Commissioner Neate examined the evidence and concluded that the appellant's existing psychiatric condition was not aggravated or did not develop on 4 April 2019 as alleged. The court found that the appellant's claim was time-barred, as it was made well after the six-month period following the assessment of his condition by Dr. Hantom in February 2017. The court also held that the appellant failed to prove that his psychiatric disorder arose out of, or in the course of, his employment. The court referred to the case of Morrison v Workers' Compensation Regulator to support its interpretation of the phrase "in the course of employment."

In conclusion, the appeal was dismissed, and the decision of the Workers' Compensation Regulator was confirmed. The appellant was ordered to pay the respondent's costs of the hearing.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Workers' Compensation Regulator is confirmed.

3. The Appellant is to pay the Respondent's costs of the Hearing, to be agreed or, failing agreement, to be subject to 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

Pursuant to s 131(1) of the Act, "An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises." Section 141 of the Act provides that entitlement to compensation for an injury arises on the day the worker is assessed by a doctor. In Scofield v Workers' Compensation Regulator (No. 2), Deputy President O'Connor (as he then was) concluded the following:I am satisfied that the consultation on 3 April 2014 Dr Zeidan formed a conclusion or expressed an opinion that the injury arose out of the employment. The clinical notes relevantly record "stress at work" based upon what he had been told by the appellant concerning the reporting of another nurse for elder abuse. The evidence before the Commission, which I accept, was that based on the history given to him, Dr Zeidan made an evaluation that the appellant was suffering from stress at work. In the MHCP issued on 3 February 2017, Dr Hantom first opined that Mr Shaw's psychological condition was caused by a combination of work and personal stress. Clearly, an application made in 2019 is well out of time for an injury assessed by Dr Hantom in February 2017. Based on the reasoning in Workers' Compensation Regulator v Guymer and Scofield v Workers' Compensation Regulator (No. 2),[82] my conclusions above would be sufficient to dismiss the Appeal altogether. [82] Scofield v Workers' Compensation Regulator (No. 2) [2018] QIRC 103. However, in the event I am wrong on that point, and either Mr Shaw's existing psychiatric condition was aggravated or a new psychiatric condition developed on 4 April 2019, I will proceed to consider further criteria under s 32 of the Act. To meet this test, it is sufficient for Mr Shaw to prove that the psychiatric disorder either arose "out of" or "in the course of" his employment. It need not be both.Arising in the course of his employment It has been said that "It has generally been accepted that these words do not require a causative element but a temporal one…"[83] [83] LexisNexis, Industrial Law Queensland, Service 119, 110,116 [71,005]. Commissioner Neate explained in Morrison v Workers' Compensation Regulator that (emphasis added): An injury "in the course of employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[84][84] [2016] QIRC 065, [9]. Consideration - Arising in the course of his employment Mr Shaw was employed as Principal of KKSS in January 2010. He did not return to that position after 4 April 2019, instead embarking on a period of extended sick leave until his resignation on 18 February 2021.

Ratio Decidendi

Legal Principle Established

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