Simon Blackwood (Workers' Compensation Regulator) v Mahaffey

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010

PARTIES:

SIMON BLACKWOOD (WORKERS’ COMENSATION REGULATOR)

(appellant)

v
SAMANTHA MAHAFFEY

(respondent)

FILE NO/S:

C/2015/30

PROCEEDING:

Appeal

DELIVERED ON:

7 April 2016

HEARING DATE:

24 September 2015

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the respondent claimed compensation for psychological injuries said to have occurred as a result of certain stressors including, among other things, ongoing bullying, intimidation and harassment by her employer, and not being provided with reasonable management action to ensure she could appropriately deal with hostile telephone calls and attendances from customers and creditors – where the Commission found that the employer had engaged in ongoing bullying, intimidation and harassment of the appellant as she described, that this was not reasonable management action taken in a reasonable way for the purposes of s 32(5) of the Workers’ Compensation Act 2003 (the Act), and that this was “the major significant factor” in her injury for the purposes of s 32(1) of the Act – where the Commission also found that the injury, to the extent it was caused by the hostile phone calls, arose in the course of reasonable management action for the purposes of s 32(5) of the Act – whether the Commission erred in proceeding on the basis that although a particular stressor is a cause of a psychiatric or psychological disorder and arises out of, or in the course of, reasonable management action reasonably taken, the psychiatric or psychological disorder is nevertheless not excluded from the definition of “injury” in s 32(1) if it is also the result of other stressors

Workers’ Compensation and Rehabilitation Act 2003, s 32(1), s 32(5)

CASES:

Bird v the Commonwealth (1988) 165 CLR 1, applied
Comcare v PVYW (2013) 250 CLR 246, cited
Davis v Simon Blackwood (Workers’ Compensation Regulator) [2014] ICQ 009, cited
Hewitt v Benale Pty Ltd [2002] WASCA 163, (2002) 27 WAR 91, cited
IW v City of Perth (1997) 197 CLR 1, cited
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, cited
Parker v Q-COMP (2007) 185 QGIG 269, cited
Q-COMP AND Malcolm Hochen (C/2009/47) – Decision < cited
Q-COMP v Education Queensland (McArthur’s Case) (2005) 179 QGIG 491, cited
Q-COMP v Hohn (2008) 187 QGIG 139, cited
Q-COMP v Rowe (2009) 191 QGIG 67, cited
Rodgers v Revenue SA [2014] SASCFC 2, (2014) 240 IR 202, cited
Simon Blackwood (Workers’ Compensation Regulator) v Adams [2015] ICQ 001, cited
Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2015] QIRC 116, cited
Vesna Misevski v Q-COMP (C/2009/29) – Decision < cited
Victims Compensation Fund v Brown (2003) 201 ALR 260, cited

APPEARANCES:

S Gray directly instructed for the appellant

M Horvath instructed by Quinn & Scattini for the respondent

  1. This appeal raises, again, the proper application of…

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Details
Case
[2016] ICQ 10
Decision Date

CaseChat Overview and Summary

In the matter of Simon Blackwood (Workers' Compensation Regulator) v Mahaffey, the Queensland Court of Appeal was tasked with reviewing a decision made by the Workers' Compensation Regulator concerning a claim for compensation for psychological injuries sustained by Ms. Mahaffey. The primary dispute centred on whether the Regulator had correctly applied the provisions of the Workers' Compensation Act 2003 in determining the compensability of Ms. Mahaffey's injuries, which she attributed to stressors including ongoing bullying, intimidation, and harassment by her employer, as well as inadequate management action to support her in dealing with hostile phone calls and customer visits.

The central legal issue for the court was whether the Workers' Compensation Regulator erred in its determination that, even though some of the stressors contributing to Ms. Mahaffey's psychological injury arose out of reasonable management action, the injury was not excluded from compensation under section 32(1) of the Act if other stressors also contributed to the injury. The appeal hinged on the interpretation of the statutory provisions regarding reasonable management action and the causation of psychological injuries.

The Court of Appeal found that the Regulator had indeed erred in its application of the Act. The court held that the Regulator failed to properly consider the interplay between stressors that arose from reasonable management action and those that did not. The court emphasised that under the Act, an injury is not excluded from compensation solely because it is caused by stressors that arise out of reasonable management action if other significant stressors also contribute to the injury. The court's reasoning was grounded in the need to balance the employer's obligation to manage workplace risks with the employee's right to compensation for psychological injuries resulting from work-related stressors. Consequently, the court allowed the appeal and remitted the matter to the Regulator for reconsideration in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his written submissions, Mr Gray identified what he described as the “critical errors” in the decision which require intervention in this appeal. They are:(a) having found that Ms Mahaffey’s injury was excluded by the reasonable management action provisions of the Act, in so far as it related to one stressor, the Deputy President erred by finding that Ms Mahaffey’s injury could be accepted because of a “dominant” stressor;(b) the Deputy President misinterpreted the basis of Ms Mahaffey’s nominated stressor number 2; and(c) having observed that Ms Mahaffey most likely had not proved the matters described within stressor 3, the Deputy President failed to determine that stressor 3 was reasonable management action, taken in a reasonable way, in connection with Ms Mahaffey’s employment.The psychiatric evidence Before turning to a consideration of the grounds of appeal, it will assist if the expert evidence is set out. Dr Chau provided a psychiatric report which was not as clear as it might have been. Such a report should, at a minimum, discuss, and offer an opinion on:(a) the subject’s psychiatric condition,(b) what the subject told the psychiatrist about the employment, and(c) the causal relationship (if any) between the employment and the condition. In the process of doing that, the psychiatrist should specifically consider the stressors nominated by the subject and express a view, on the assumption that they will be established, as to any causal relationship. In this case, the psychiatric report is not expressed in a helpful way. It did not give any clear opinion on the part the stressors played. But that was remedied, to an extent, by the oral evidence given. It was more relevant to the issues to be decided by the Commission. In examination in chief the following evidence was given:“Doctor, what was the conclusion you reached with Ms Mahaffey whether she has a psychiatric condition or not? ---I believe that she has a psychiatric condition being the [indistinct] disorder with mixed anxiety, depressed mood, and an aggravation of social phobia.And did you consider the cause of that condition? --- Yes. I have.And what was your conclusion about the cause of her condition? --- I think it would be consistent with having been caused by what she is reporting to be harassment at work by her employer.”[4][4] T 1-79. In cross-examination the doctor gave the following evidence:“... Now, as I understand the opinion that you’ve expressed, or the summary and conclusions, appears at page 18 of your report? --- Yes.And what you say there is that she’s developed – or you have diagnosed [indistinct] disorder with mixed anxiety and depressed mood? --- That’s right.And you say that that’s as a result of feeling harassed by her employer at work in Mount Cotton Constructions? --- That’s right.But in addition to that, a contributing factor to the development of her injury is what you there say:In addition to this she believed she did not believe she received adequate support or training during her course of employment.? --- That’s right.So that was another thing that contributed to the development of her injury? --- That’s right.And as you understand on the top of that page the statement of stressors, which are one, two, three, four, all of those matters combined to cause Ms Mahaffey’s injury? --- That’s right.…And if we look on the top of page 3 what she told you what she found stressful was receiving abusive telephone calls from the clients, but importantly, the fact that she believed she had no support from other staff? --- Uh-huh.And so when you expressed your opinion you understood that she’s dealing with all these by herself? --- Yes. That’s right.And that her employer had actually put in no steps at all to help her deal with those phone calls? --- That’s right.…Because there’s a number of factors that all add towards causing the injury? --- Uh-huh.…And it’s the statement of stressor is, one, two, three, four, all of these have a role to play in the development of Ms Mahaffey’s injury? --- Yes.…Well, would you agree what obviously in respect to the development of Ms Mahaffey’s injury having to deal with these phone calls was something that was very significant in the development of her injury? --- I wouldn’t be able to comment on that. Look I have – I didn’t actually question her about, you know, which one developed first in terms of the stress. When she was talking to me that certainly was part of the stress, I couldn’t say whether or not that was the start of the stress. Where she – she particularly did mention the harassment.Yes? --- Harassment being that she was quite scared of Scroope.…So given that she has that feeling about the phone calls, that’s got a very significant contribution towards her injury? --- Yes. Sure.”[5][5] T 1-80–82.

Decision

Reasons for decision

In examination in chief the following evidence was given:“Doctor, what was the conclusion you reached with Ms Mahaffey whether she has a psychiatric condition or not? ---I believe that she has a psychiatric condition being the [indistinct] disorder with mixed anxiety, depressed mood, and an aggravation of social phobia.And did you consider the cause of that condition? --- Yes. I have.And what was your conclusion about the cause of her condition? --- I think it would be consistent with having been caused by what she is reporting to be harassment at work by her employer.”[4][4] T 1-79. In cross-examination the doctor gave the following evidence:“... Now, as I understand the opinion that you’ve expressed, or the summary and conclusions, appears at page 18 of your report? --- Yes.And what you say there is that she’s developed – or you have diagnosed [indistinct] disorder with mixed anxiety and depressed mood? --- That’s right.And you say that that’s as a result of feeling harassed by her employer at work in Mount Cotton Constructions? --- That’s right.But in addition to that, a contributing factor to the development of her injury is what you there say:In addition to this she believed she did not believe she received adequate support or training during her course of employment.? --- That’s right.So that was another thing that contributed to the development of her injury? --- That’s right.And as you understand on the top of that page the statement of stressors, which are one, two, three, four, all of those matters combined to cause Ms Mahaffey’s injury? --- That’s right.…And if we look on the top of page 3 what she told you what she found stressful was receiving abusive telephone calls from the clients, but importantly, the fact that she believed she had no support from other staff? --- Uh-huh.And so when you expressed your opinion you understood that she’s dealing with all these by herself? --- Yes. That’s right.And that her employer had actually put in no steps at all to help her deal with those phone calls? --- That’s right.…Because there’s a number of factors that all add towards causing the injury? --- Uh-huh.…And it’s the statement of stressor is, one, two, three, four, all of these have a role to play in the development of Ms Mahaffey’s injury? --- Yes.…Well, would you agree what obviously in respect to the development of Ms Mahaffey’s injury having to deal with these phone calls was something that was very significant in the development of her injury? --- I wouldn’t be able to comment on that. Look I have – I didn’t actually question her about, you know, which one developed first in terms of the stress. When she was talking to me that certainly was part of the stress, I couldn’t say whether or not that was the start of the stress. Where she – she particularly did mention the harassment.Yes? --- Harassment being that she was quite scared of Scroope.…So given that she has that feeling about the phone calls, that’s got a very significant contribution towards her injury? --- Yes. Sure.”[5][5] T 1-80–82.

Ratio Decidendi

Legal Principle Established

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