Stable v Workers' Compensation Regulator - [2024] QIRC 274

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Stable v Workers' Compensation Regulator [2024] QIRC 274
PARTIES:	Stable, Laura (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/160
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	26 November 2024
HEARING DATES:	12 October 2022 to 14 October 2022, 20 October 2022
SUBMISSIONS:	Appellant's closing submissions: 4 August 2023 Respondent's closing submissions: 30 October 2023 Appellant's closing submissions in reply: 13 November 2023
MEMBER:	Power IC
HEARD AT:	Brisbane
ORDERS:	The appeal is dismissed. The decision of the Workers' Compensation Regulator is confirmed. Failing agreement on costs, to be the subject of a further application to the Commission. Liberty to apply.
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether management action is reasonable – appeal dismissed.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32
CASES:	Briffa v Q-COMP (2005) 180 QGIG 70 Browne v Dunn (1893) 6 R 67 (HL) Davis v Blackwood [2014] ICQ 009 Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027 Jones v Dunkel (1959) HCA 8 McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180 Murphy v Workers' Compensation Regulator [2022] QIRC 264 Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301 Rossmuller v Q-COMP [2010] ICQ 4 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010 Workers' Compensation Regulator v Langerak [2020] ICQ 2
APPEARANCES:	Ms M.J Brooks of Counsel instructed by Holding Redlich Mr S.P Gray of Counsel directly instructed by the Respondent

Reasons for Decision

Ms Laura Stable ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to deny her application for compensation relating to an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').

Issue for determination

The issue to be determined is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the Act provides:

32 Meaning of injury

(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(2)However, employment need not be a contributing factor to the injury if section 34(2) or 35(2)applies.
(3)Injury includes the following—
(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
(i)a personal injury;
(ii)a disease;
(iii)a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

(c)loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
(d)death from injury arising out of,…

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 Stable v Workers' Compensation Regulator

Details

AGLC: Stable v Workers' Compensation Regulator [2024] QIRC 274
Case: [2024] QIRC 274
Decision Date: 26 November 2024

CaseChat Overview and Summary

In the case of Stable v Workers' Compensation Regulator, Ms Laura Stable, the Appellant, appeals a decision of the Workers' Compensation Regulator, the Respondent, to deny her application for compensation relating to an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The primary issue in this appeal is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act, and if the injury is excluded by the reasonable management action provision of s 32(5) of the Act. The Court must determine whether the Appellant's psychological injury, which arose from her employment as a teacher, is attributable to reasonable management actions taken by the school.

The Appellant, a teacher at a school, sought to claim compensation for a psychiatric injury arising from her employment, particularly due to the challenging behaviours of students in her class. The Appellant argued that the injury was caused by the lack of support from school management and the challenging behaviour of students, which she claimed were not adequately addressed by the school. The Respondent contended that the Appellant's injury was excluded under s 32(5) of the Act because it arose from reasonable management actions taken by the school.

The Court found that the Appellant's injury was significantly contributed to by the management actions of the school, specifically the lack of support and inadequate measures taken to address the challenging behaviours of students in her class. The Court emphasised that the Appellant's injury was a result of both management and non-management stressors. However, the Court concluded that the management actions taken by the school were reasonable under s 32(5) of the Act. As such, the Appellant's claim for compensation was dismissed.

The Court's decision is grounded in the evidence presented, including medical evidence from Dr Takao Kobayashi and Dr Michele Calvird, which highlighted the Appellant's psychological injury and the role of stressors in her workplace. The Court held that even though the Appellant's injury was significant, the reasonable management actions taken by the school excluded her claim under s 32(5) of the Act.

The appeal is dismissed, and the decision of the Workers' Compensation Regulator is confirmed. Costs are to be determined if the parties cannot agree. Liberty to apply is granted.

Orders

Orders of the court

1. The appeal is dismissed.

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

1. Failing agreement on costs, to be the subject of a further application to the Commission.

1. Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In circumstances where the ultimate decision maker, Ms Hansen, was called along with the Deputy Principal who was involved with class allocation, I am not of the view that it was expected that the Respondent called Ms Lewis or Ms Prince. Accordingly, no such inference will be drawn.Medical evidenceDr Takao Kobayashi, General Practitioner Dr Kobayashi was the Appellant's treating general practitioner who had been treating the Appellant for anxiety and depression for a number of years. On 29 October 2018, the Appellant attended upon Dr Kobayashi who referred her to Dr Calvird, a psychiatrist, for treatment.[48] [48] Exhibit 1, Volume 1, Trial Bundle, [75]. The Appellant attended upon Dr Kobayashi on 11 September 2020 and outlined to him that she was not sleeping well, was grinding her teeth and had been unable to open her mouth the day before.[49] [49] Exhibit 1, Volume 1, Trial Bundle, [453]. Dr Kobayashi gave evidence that the Appellant had previously suffered jaw pain and joint pain and that he thought it was stress related.[50] [50] T 2 – 16, ll 1 – 5. The Appellant attended upon Dr Kobayashi on 8 January 2021 with a stomach-ache and diarrhoea.[51] [51] Exhibit 1, Volume 1, Trial Bundle, [453]. On 18 January 2021, the Appellant attended upon Dr Kobayashi and described having good days and bad days and that she thought stress towards school was causing her more anxiety.[52][52] Exhibit 1, Volume 1, Trial Bundle, [454]. Dr Kobayashi recorded on 2 February 2021 the following[53] – History:diarrhoea still[53] Exhibit 1, Volume 1, Trial Bundle, [455].stress++ a teacher of year 1 two students already suspended On 24 March 2021, Dr Kobayashi referred the Appellant to Dr Calvird, stating[54] – The last few months, she has been suffering from chronic diarrhoea, stool check, blood test colonoscopy were all normal, it seems to be stress related. She has no support too much workload, it is hard [for] her to cope with. [emphasis added][54] Exhibit 1, Volume 1, Trial Bundle, [281]. Dr Kobayashi noted on 15 April 2021 the following[55]-This problem is not only her problem but also school problemunless her school changes nothing change she needs somebody to change this situation leagal [sic] action may be another option to do so, she has no energy at a moment…mentally distressed by her students and lack of support from the schoolI think the lack of support is more cause of problem [emphasis added][55] Exhibit 1, Volume 1, Trial Bundle, [457]. The evidence of Dr Kobayashi indicates that the actions of school management were a significant contributor to the Appellant's injury.Dr Calvird, Psychiatrist Dr Calvird's medical records include a Doctor's Admission Assessment from the Belmont Private Hospital dated 11 January 2020 recording a diagnosis (DSM-IV) of major depressive episode – post natal exacerbation.[56][56] Exhibit 1, Volume 1, Trial Bundle, [40]. I accept the Appellant's submission that the pre-existing history provides some background evidence regarding her psychological medical history, but it is of limited relevance to the issues to be determined by the Commission. The Respondent concedes that the injury arose out of the Appellant's employment at the school and there is no contention by the Respondent that the injury is an aggravation of a pre-existing condition. I accept that the medical evidence indicates that the Appellant has been relatively stable in terms of her symptoms from 2014 onwards.

Decision

Reasons for decision

The decision of the Workers' Compensation Regulator is confirmed. Failing agreement on costs, to be the subject of a further application to the Commission. Liberty to apply. Ms Laura Stable ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to deny her application for compensation relating to an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). The issue to be determined is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the Act provides: This appeal to the Commission is by way of a hearing de novo upon which the onus of proof falls on the Appellant.[1] The Commission must be satisfied that the worker has suffered an injury within the meaning of the Act.[2][1] Rossmuller v Q-COMP [2010] ICQ 4[2] McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180; Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301 The Appellant must prove, on the balance of probabilities,[3] that the claim is one for acceptance. That is, that the Appellant suffered an injury; the injury arose out of, or in the course of her employment with the employer; and the employment with the employer was a significant contributing factor to the injury.[3] Briffa v Q-COMP (2005) 180 QGIG 70 The Appellant must also prove that her injury is not excluded by the reasonable management action provision of s 32(5) of the Act. The parties are in agreement that the Appellant was a worker, that she sustained a psychological or psychiatric injury, and that the injury arose out of her employment with the employer. After carefully considering all of the evidence in this matter, on the balance of probabilities, I find that the Appellant's injury is excluded due to the operation of s 32(5) of the Act. My reasons follow. The Appellant commenced employment at the school in 2020 as a teacher working in Grade 1.[4][4] Name of school suppressed to protect identities of students. The Deputy Principal that had management responsibility for the Prep and Grade 1 classes was Ms Kelly Uittenbosch and the Principal at the school during the relevant period was Ms Deborah Hansen. The Appellant was advised towards the end of Term 4 in 2020 that the composition of her grade 1 class for 2021 included Student A, Student B, and Student C who had each previously displayed challenging behaviours. The Appellant sought medical assistance at a visit to Dr Takako Kobayashi, General Practitioner, for symptoms related to irritable bowel syndrome ('IBS') on 8 January 2021. The Appellant taught her allocated class, that being Class 1S, from 27 January 2021, the commencement of Term 1, until 12 April 2021. On 25 March 2021, Dr Michele Calvird, Psychiatrist, provided a work capacity certificate providing a provisional diagnosis of adjustment disorder with depressed and anxious mood. Dr Calvird described the mechanism of injury as:Exposed to marked traumatic experiences in workplace due to students' aggression, without sufficient extra measures/support being put in place by school management for her/others' safety.[5] [5] Exhibit 1, Volume 2, Trial Bundle, [614].

Ratio Decidendi

Legal Principle Established

These management stressors will be considered below in the context of s 32(5). Consideration of s 32(5) The Appellant bears the onus of demonstrating that the injury is not excluded by reasonable management action provisions in s 32(5) of the Act. The parties are in agreement that there was no management action being taken by the school against the Appellant and accordingly there is no requirement to consider s 32(5)(b). The Appellant submits that there are significant stressors that are not related in any way to management action that have played a more than significant role in giving rise to the Appellant's decompensation. In these circumstances, the Appellant submits that even if the Commission is satisfied that there are some aspects of the management action which have been taken reasonably, the Appellant is still entitled to succeed in light of the significant contribution to her injury made by the non-management action stressors. I note the Respondent's submissions that the Appellant's SOFC outlined an extensive number of single incidents relating to non-management action stressors but summarised the stressors relating to management action. Whilst this may give the impression that the non‑management action stressors vastly outweigh the significance of the management-action related stressors, it is clear from the medical evidence that both the management action stressors and non-management action stressors were integral to the development of the Appellant's injury. I also note that the agreement between the parties at the commencement of the hearing was that the injury arose from both management and non-management stressors. In Davis v Blackwood,[82] ('Davis') Martin P stated the following – The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.…I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an "injury". In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.[83][82] [2014] ICQ 009, 51.[83] Davis v Blackwood [2014] ICQ 009, 51.