Simon Blackwood (Workers' Compensation Regulator) v Yates - [2015] QIRC 174

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Simon Blackwood (Workers' Compensation Regulator) v Yates [2015] QIRC 174
PARTIES:	Simon Blackwood (Workers' Compensation Regulator) (Applicant) v Yates, Michelle (Respondent)
CASE NO:	WC/2015/244
PROCEEDING:	Application for Orders
DELIVERED ON:	8 October 2015
HEARING DATES:	6 October 2015
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. Three stressors struck out from the Statement of Stressors. 2. Costs Reserved.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPLICATION FOR ORDERS ‑ Standard of proof - Witness evidence - Prescribed time period to lodge a claim - Diagnosis - Statement of Stressors - Three stressors removed from Statement of Stressors - Costs reserved.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 131 Blackwood v Toward [2015] ICQ 008 Groos v WorkCover Queensland [2000] 165 QGIG 106
APPEARANCES:	Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Applicant. Ms S. Anderson of Counsel, instructed by Shine Lawyers for the Respondent.

Decision

A Notice of Appeal was lodged with the Industrial Registrar on 2 April 2015 by Michelle Yates (Yates) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 6 March 2015 which upheld a decision of WorkCover Queensland (WorkCover) to reject a claim by Yates for workers' compensation for a psychological injury.
On 4 September 2015 the Regulator lodged an Application for Orders in the following terms:
"1. An order that the appeal (WC/2015/83) filed by the appellant, Michelle Yates, be scheduled for a preliminary hearing before the Commission to determine whether the appellant's application for compensation, lodged on 24 March 2014, was out of time and not valid or enforceable pursuant to s 131(1) of the Workers' Compensation and Rehabilitation Act 2003, insofar as to any of the appellant's stated stressors which occurred prior to 11 May 2012.
2. Ms Yates pay the Regulator's costs of and incidental to this preliminary application."
An affidavit sworn by Cheryl-Lea Godfrey an Appeals Officer with the Regulator (attached to the application) stated amongst other things the following:

"k)    Ms Yates contends that her stressors which caused her psychological injury occurred over a period of time from March 2012 to March 2014.
l)      On 4 May 2012, Ms Yates attended her GP, Dr Ernest Finberg (Gold City Medical Centre, Charters Towers). The consultation note made for 4 May 2013 [sic] states: 'Works at Ravenswood in kitchens and laundry. C/O Bullying at work. Acute episode yesterday Now feel extremely anxious a suffering from what appears to be work related stress'. A script was written for Valium and a Certificate of sickness was prepared.
m)     On 11 May 2012, Ms Yates again attended upon Dr Ernest Finberg. The consultation note made for 11 May 2012 states: 'Says she feels better since taking Valium but work situation unchanged. Is awaiting visit in 3 days from Senior Manager to resolve problem'."

Regulator

The Regulator called evidence from Dr Ernest Finberg (Dr Finberg) a retired General Practitioner who had treated Yates on two separate occasions (4 May 2012…

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.

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Details

Case: [2015] QIRC 174
Decision Date: 8 October 2015

CaseChat Overview and Summary

The case of Simon Blackwood (Workers' Compensation Regulator) v Yates involves a dispute over workers' compensation. Yates sought compensation for a workplace injury allegedly caused by bullying. The Workers' Compensation Regulator challenged Yates' claim, arguing that she did not suffer an injury as defined by the Workers' Compensation Act 1990. The matter was before the court, which had to determine whether Yates' condition constituted an "injury" under the Act and if the claim was lodged within the prescribed time period. Additionally, the court needed to decide if Yates' absence from work on 4 May 2012 was warranted by her medical condition, as diagnosed by Dr Finberg.

The court examined the evidence and legal principles relevant to defining an "injury" under the Act. Dr Finberg's diagnosis and medical evidence were pivotal, as he concluded that Yates was suffering from work-related stress, which justified her absence from work. The court referenced the decision in Groos to clarify that the diagnosis of an injury does not necessarily depend on meeting the criteria of the DSM 4. Instead, the court considered whether the worker suffered an impairment arising from the employment that was a significant contributing factor. The court also noted that the existence of an injury may be inferred from the existence of impairment in the absence of contrary evidence.

The court found that Yates did indeed suffer an injury as defined by the Act. Dr Finberg's diagnosis of a work-related stress condition on 4 May 2012 provided a clear basis for this determination. The court struck out three stressors from Yates' Statement of Stressors, as they were not supported by the evidence. The court reserved the decision on costs, indicating that the matter would be addressed at a later stage.

ORDERS:
1. Three stressors struck out from the Statement of Stressors.
2. Costs Reserved.

Orders

Orders of the court

1. Three stressors struck out from the Statement of Stressors.

2. Costs Reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was submitted the application should be dismissed.Conclusion The effect of the application if granted would not inhibit the hearing of the substantive appeal in Townsville commencing 26 October 2015. On consideration of the material before the proceeding including the evidence of Dr Finberg, it has been established that on 4 May 2012 Yates sought medical treatment for a condition said to have arisen as a consequence of bullying in the workplace. Dr Finberg recorded that Yates was "suffering from what appears to be work related stress" and confirmed this opinion in the course of his evidence. He went on to issue a Certificate of Sickness which identified Yates suffering from a medical condition and of her being unfit for duty on 4 May 2012. There appears to be some conjecture about whether Yates absented herself from her place of work that day or not but the point made by Dr Finberg was that in his opinion the medical condition which she was suffering warranted an absence from work on the day in question. Yates again consulted with Dr Finberg on 11 May 2012 where she informed him that since taking the prescription drug Valium (prescribed by Dr Finberg on 4 May 2012) she was feeling better but her work situation was unchanged and she was awaiting the arrival of a Senior Manager to resolve the problem. Effectively on 4 May 2012 there was a diagnosis of an injury which would have enabled Yates to lodge an application for workers' compensation. The diagnosis in this case is supported by the decision in Groos where Hall P stated:"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive. If the legislature had wished to confine relief to cases in which a condition answered the criteria of DSM 4, the legislature might have said so. By way of example, s. 214 of the Workplace Relations Act 1997 (now repealed) provided 'If an expression used in this chapter is also used in the Termination of Employment Convention 1982, it has the same meaning as in the convention'. It is difficult to accept that a diagnostic standard developed to ensure that psychiatrists from different backgrounds diagnose on the basis of a common international standard is an appropriate mechanism to use in assessing whether a worker suffering impairment arising out of the course of his employment and to which his employment was a significant contributing factor, is entitled to assert entitlement to compensation for the impairment because he has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990. One cannot resist adding that the diagnostic standard is in terms about 'illness' rather than 'injury'. Noticing that where an injury is shown, 'impairment' as defined at s. 39, is by s. 43 of the Workers' Compensation Regulation 1992 assessed by using the AMA Guide, Dr Mulholland has worked backwards assessing the degree of impairment, noticing the causal nexus with the incident of 14 January 1997, and concluding that the appellant was 'injured' by the incident. It may be conceded that that process of reasoning is a process of reasoning which the Act does not require. I note the submission of WorkCover Queensland that the WorkCover Queensland Regulation 1997, s. 55(2) uses the verb 'must' in requiring reference to be had to the AMA standard in assessing impairment. It may be conceded that neither in the Workers' Compensation Act 1990 nor in the Workers' Compensation Regulation 1992 is an obligation to be found to use of the AMA standard to determine whether the worker has suffered an injury. Frankly, if the intention had been to impose an obligation to determine the existence of an injury by assessing impairment under the AMA standard I should have expected to find an express provision. But it has not been put that the existence of an injury must be determined in that way. What is put, and put correctly, is that in the case where there is no evidence to the contrary, the existence of the injury may be inferred from the existence of the impairment. In my view the Industrial Magistrate did not err in finding that the appellant had suffered an "injury" within the meaning of the Workers' Compensation Act 1990."

Ratio Decidendi

Legal Principle Established

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