State of Queensland (Department of Communities, Child Safety and Disability Services) v Simon Blackwood (Workers' Compensation Regulator)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Department of Communities, Child Safety and Disability Services) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 097
PARTIES:	State of Queensland (Department of Communities, Child Safety and Disability Services) (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Second Respondent (Name suppressed)
CASE NO:	WC/2014/39
PROCEEDING:	Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	22 May 2015
HEARING DATES:	2, 3, and 4 June 2014
MEMBER:	Industrial Commissioner Black
ORDERS :	1. Appeal allowed. 2. The decision of the Regulator dated 8 January 2014 is set aside. 3. Costs are reserved.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether employment was significant contributing factor to development of an adjustment disorder – significant level of personal stressors present.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 550
APPEARANCES:	Dr M Spry, Counsel instructed by Crown Law for the Appellant. Mr P O'Neill, Counsel instructed by Simon Blackwood (Workers' Compensation Regulator), for the First Respondent. Ms L Wilson, Counsel instructed by Shine Lawyers for the Second Respondent.

Decision

Introduction

The State of Queensland (Department of Communities, Child Safety and Disability Services) ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator (the regulator) to accept the Second Respondent's application for workers' compensation.

The second respondent lodged her application for compensation with WorkCover on 25 September 2012. On her claim form she referred to the injury as "Psychological system in general, reaction to stressors - other, multiple". The second respondent cited "cumulative emotional trauma from direct client work" as the cause of the injury. At the time she was employed by the appellant as a Family Group Meeting (FGM) Convenor. The second respondent obtained a Workers Compensation Medical Certificate from Dr Aliasghar Hosseinpournobari (Dr Ali) on 2 October 2012, on which the injury was recorded as "depression" with the workers stated cause of injury cited as "client conflict". The worker's stated date of injury was specified as 1 April 2012.

On 16 November 2012 WorkCover Queensland rejected the second respondent's application for workers' compensation on the basis that the injury "arose out of reasonable management action". On 6 February 2013, the second respondent asked the regulator to review WorkCover's decision. On 20 March 2013, the regulator set aside WorkCover's decision and referred it back to them to undertake further investigation of the stressors of the worker's injury.
On 27 May 2013, WorkCover advised that after further investigation, the claim for compensation was one for acceptance. The appellant subsequently lodged an application for review of the decision with the regulator on 27 August 2013.
The regulator upheld the position of the appellant on 10 October 2013 and set aside WorkCover's decision to accept the claim, again referring the matter back to WorkCover to undertake further investigation. WorkCover subsequently accepted the application for compensation on 5 November 2013.
The appellant again sought a review of WorkCover's decision. However on this occasion WorkCover's view was confirmed in a decision issued on 8 January 2014. It is this decision of the regulator which is now subject to appeal to the Commission pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
A summary of the claims consideration process is set out below:

·        25 September 2012 - Claim lodged
·        16 November 2012 - First WorkCover decision (claim rejected)
·        20 March 2013 - First regulator decision (claim referred back)
·        27 May 2013 - Second WorkCover decision (claim accepted)
·        10 October 2013 - Second regulator decision (claim referred back)
·        5 November 2013 - Third WorkCover decision (claim accepted)
·        8 January 2014 - Third and final regulator decision (claim acceptance confirmed)

Issue for Determination

The appeal to the Commission is by way of a hearing de novo. To succeed with the appeal, the appellant must establish on the balance of probabilities that the second respondent's psychological injury was not captured by s 32(1) of the Act or alternatively, if it were captured, it was open to the appellant to argue that the injury was removed from s 32(1) by virtue of s 32(5) of the Act.

The First Respondent did not make submissions in the matter. The Second Respondent advanced the case that from January 2012 onwards she had been exposed during the course of her employment to a number of stressful situations which contributed significantly to the development of her injury. It was not contested that during the relevant period the second respondent was also subject to stressors which were unrelated to her employment, but it was maintained that the work-related stressors were a significant contributing factor to her injury.
The appellant admitted that the second respondent was a worker for the purposes of s 11 of the Act and that she had suffered a psychological injury. The appellant submitted however that the injury did not arise out of, or in the course of employment and that the employment was not a significant contributing factor to the injury.

Section 32 of the Act (as it stood at the time) relevantly provides as follows:
32 Meaning of Injury

(1)An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.

…
(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;

(4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action by the Authority or an insurer in connection with the worker's application for compensation."

Evidence

At the commencement of the proceedings an application was made requesting that the names of lay witnesses be suppressed and that access to the transcript of proceedings be limited to the parties. The application was granted and as a consequence lay witnesses have been given designations to facilitate identification. During the course of the proceedings, evidence was provided by eleven witnesses. The witnesses for the appellant were as follows:

·        Injury Management Advisor
·        Manager
·        Assistant Regional Director
·        Family Group Meeting Convenor 1.

The First Respondent did not call any witnesses in the matter. The witnesses for the Second Respondent were as follows:
·Second respondent
·Second respondent's husband
·Family Group Meeting Convenor 2
·Co-Worker 1
·Therese Landers (Psychologist)
·Dr Ross Phillipson (Consultant Psychiatrist)
·Dr Aliasghar Hosseinpournobari (General Practitioner).

Chronology

The following chronology sets out the events relevant to the decision making process:

4 January 2012:            Tara family group meetings re-assigned to second respondent
17 January 2012:          Attendance at family group meetings at Tara
6 February 2012:          Second respondent attends on Dr Ali
10 February 2012:        Application for recreation leave from 2 April 2012 to 13 April 2012
23 March 2012:            Attendance at five family group meetings in Ipswich
29 March 2012:            Toowoomba Show Holiday
30 March 2012:            Last day at work prior to recreation leave
30 March 2012:            Incident while on camping trip
30 March 2012:            Separation from husband
31 March 2012:            Camping trip abandoned
2 April 2012:                Commencement of pre-approved recreation leave
3 April 2012:                Completion of rental application
4 or 5 April 2012:        Request to Manager for additional four weeks of recreation leave
6 April 2012                 Good Friday
14 May 2012:               Return to work
21 May 2012:               Travel to Ipswich with Family Group Convenor 1 to attend family group meetings
22 May 2012:               Commencement of sick leave
22 May 2012:               Attendance on Dr Ali
23 May 2012:               Mental health assessment completed by Dr Ali and second respondent referred to Ms Landers
30 May 2012:               First consultation with Ms Landers
20 June 2012:               Second consultation with Ms Landers
28 June 2012:               Third consultation with Ms Landers
18 July 2012:               Second respondent emails her Manager and advises of incidents involving both her daughters
24 August 2012:          Ms Landers proposed return to work plan
30 August 2012:          The Assistant Regional Director rejects return to work plan
1 September 2012:       Second respondent sends a text to her Manager saying that she is devastated by the rejection of the return to work plan and saying that she will be lodging a WorkCover claim
24 September 2012:     Date of application for workers' compensation.

Tara Incident

The complaint of the second respondent was that she was not fully informed about a threat made by a family member against departmental staff, that the employer's response to the December 2011 critical incident form was inadequate, and that it should have done more to identify the level of risk associated with the 17 January 2012 Tara meeting and should have done more to mitigate that risk. In the end result management failed the second respondent and she was left to fend for herself in dealing with a risk which was exacerbated by the failure of the employer to provide a replacement phone which included a duress mechanism.

The second respondent got the Tara file on 4 January 2012. Her preparation for the 17 January 2012 family group meetings in Tara is disclosed in Exhibit 29 which comprises agendas and notes for the two family group meetings. According to her notes she phoned the team leader, Karen Childs, on the same day that she got the file. During the conversation Ms Childs informed the second respondent that the father had made a threat to kill departmental staff.

While the second respondent agreed (T2-58) that on 4 January 2012 that she was told by Ms Childs what the father had said, she tried to discredit Ms Childs' information by saying that Ms Childs was not sufficiently explicit about when the threat was made. Notwithstanding this the second respondent then claimed that it was only at her own initiative that she became fully informed about the threat. She said that after getting the information from Ms Childs she went about reviewing the electronic case notes relating to the particular matter. It was then that she discovered a 13 December 2011 critical incident report (Exhibit 21) in which it was reported that the father of the child had made a threat to kill a client service officer. There is no further reference to the threat made by the father in Exhibit 29 until an entry made on 16 January 2012 where the second respondent records that she spoke direct to the father and that, when she challenged him about the threat, he said that it was "only hot air", that he was really angry at the time, and that he didn't "really mean it".

It was also the second respondent's evidence that some time before 17 January 2012 she found a case note on the system indicating that the paternal aunt of the father had called to say that the father had purchased a gun and "to be very aware of that". No document was tendered providing these particulars but case notes in the evidence as Exhibit 39 included a summary of a supervised family contact event held at the Tara Community Church and Centre on 20 December 2011 which referenced the gun threat. In a conversation between particular family members the mother said that she did not think that the father "would actually go through with anything regarding the death threats and his purchasing of a hand gun. She felt that he was all talk." This reference does not make clear whether the father had threatened to purchase a gun or whether he had actually purchased a gun. At the end of the day there was no evidence that the father had a gun in his possession at or around the time of the 17 January 2012 family group meetings.
There is no contemporaneous evidence that the second respondent raised concerns with Ms Childs or her Manager about the gun threat or other matters related to the 17 January 2012 family group meetings, although the second respondent maintained in her oral testimony that she sent emails to this effect. In this regard the second respondent said that after she read the 13 December 2011 case note she then emailed the child safety office manager and her Manager and expressed concern about the meeting being held so close after the birth of the child and in "such a remote location". These emails however could not be found and thus were not tendered.
The second respondent also said that she communicated her concerns to Co-Worker 1, other family group meeting convenors, and to her husband. In terms of the other convenors it was the second respondent's evidence that while she thought she mentioned the problem with the phone to the other family group meeting convenors, she did not recall informing them of any problem she had associated with her attendance at the Tara meeting. She suggested however that she may have discussed the matter with Family Group Convenor 2.
Co-Worker 1 worked in a different section and in a different role to the second respondent, but they were on friendly terms and they usually spoke to each other on a daily basis. Co-Worker 1 said that she recalled an occasion in January 2012 when the second respondent told her about a threatening situation in connection with a family group meeting in Tara (T3-90). Co-Worker 1 said that the second respondent was not happy with the situation and was concerned for her safety.
Family Group Convenor 2 said in her evidence that she recalled an incident when the second respondent was upset at work. She remembered her walking into the office and saying that "she had to do a role that she didn't want to do". Family Group Convenor 2 was unable to say however when this incident occurred, nor was she able to provide any particulars.
Family Group Convenor 1 was also a family group meeting convenor. She said that there were four or five convenors; that the convenors were a "close team"; that they worked in close physical proximity to each other and could hear each other's conversations; and that there was a lot of discussion between them. She said that the convenors were heavily reliant on each other and very supportive of each other (T1-10) and that the second respondent was part of this process. Family Group Convenor 1 said that if a convenor received a threat the convenors would discuss it among themselves. Friday group meetings were an opportunity for convenors to debrief with their manager and to talk about planning and obstacles. This evidence suggests that the second respondent's concerns were not articulated at these meetings, either before or after the event.
Family Group Convenor 1 was not aware of threats made against the second respondent but said that "we all received threats against departmental members pretty much as a daily event" (T1-11). Family Group Convenor 1 described in her evidence how convenors would typically respond to a threat (T1-12):
"Now, what would be the - if an FGM convenor was concerned about a threat arising at a meeting, what would - if an FGM, before going to a meeting, felt concerned about their safety or the safety of any other attendees at that meeting, what should happen? ---The team would all be aware. The manager would be aware. Depending on where you were holding that meeting, we would discuss what precautions you could take. If it was at the regional office, we had duress alarms. Different times I’ve hired security. At different times I’ve asked the police to be in attendance in the foyer of whatever building. If it was unsafe and all of those supports, or any of those supports weren’t deemed to provide you with that safety, you wouldn’t conduct the meeting."
The second respondent said that the main thoughts going through her head when she was driving out to Tara was that "we were all going to be killed that day and that I wouldn't see my family again. I was very worried for my safety". The second respondent's concerns were emphasised because she was unable to take the satellite phone.
It is not in dispute that a significant number of persons attended the family group meetings held in Tara on 17 January 2012 and that the meetings passed uneventfully. The meetings were attended by the second respondent, Ms Childs, a Child Safety Officer, a representative of a recognised aboriginal and Torres Strait Islander entity, a Spiritus representative, and also the parents and grandparents. Any apprehension about personal safety or security is considered in this context.

The Manager was the second respondent's supervisor for the period 18 July 2011 to 1 July 2012. While the Manager acknowledged that a father involved in the Tara Family Group Meeting of 17 January 2012 had made threats or acted in a threatening manner, she said that nothing came of the threats and no significant concern about the meetings had been raised with her in advance. She also acknowledged that around this time there had been a problem with a blackberry phone and that the second respondent was unable to take the phone to a family group meeting (Exhibit 20 refers).
The Manager met with the second respondent in a formal setting once a month. The record of the meetings held on 6 January 2012 and 6 March 2012 were in the evidence as Exhibit 8 and Exhibit 9 respectively. Neither record included any mention of the Tara meetings or any reference to any difficulty that the second respondent might be experiencing at work.

The second respondent accepted that she did not raise with her Manager any concern arising from the conduct of the Tara meetings during the monthly meetings. Her explanation for not raising the matter with her Manager was that firstly, she said that she was not comfortable talking to her Manager about these sorts of things and secondly, given that the Tara meeting ultimately progressed smoothly, there was nothing to raise after the event. It was her evidence in the proceedings however that despite not raising the issue in the March meeting, she was "still upset and still gobsmacked at the lack of support" (T2-82).

The second respondent said that she raised the Tara meetings with Dr Ali during the 6 February 2012 consultation. However the medical records indicated that the purpose of the visit was to discuss the aspiration of giving up smoking. When he gave evidence in the proceedings Dr Ali confirmed that the only matter discussed in the 6 February 2012 consultation was the issue of smoking.

The lack of contemporaneous evidence supporting the appellant's version of events is a significant difficulty for her. Apart from the absence of any contemporaneous reporting of stress, anxiety or related illness or concern to the employer, other convenors or a medical practitioner, nor did the appellant raise the Tara incident with Ms Landers on 30 May 2012. Despite attending on Ms Landers on a number of occasions in the intervening period, the appellant did not raise the matter with Ms Landers until 21 September 2012 which was three days before the lodgment of her workers compensation claim. When the second respondent was asked in cross-examination why she did not report the Tara incident and the 23 March 2012 meetings issue to Ms Landers in the May 2012 to August 2012 meetings, she replied that she did not recall. It was the appellant's submission that, in her evidence, Ms Landers provided no report nor did she offer an opinion as to the importance or otherwise of the Tara incident on the development of the second respondent's condition. Finally the mental health assessment completed by Dr Ali on 23 May 2012 did not include any reference to the Tara incident.
I am not persuaded to accept the second respondent's assertions that her employer's handling of matters associated with the Tara meetings was significantly deficient. In this evidence the second respondent asserts in effect that Ms Childs failed to inform her when the threat about the departmental officer was made, or alternatively that Ms Childs had failed to provide her with sufficiently accurate information about the gun threat. She also said that her employer failed her on similar grounds. She said that she was isolated and left to fend for herself by her employer, and that it was only through her own diligence and independent efforts that she was able to discover the full set of facts.

Where the accountability lay for the activities put under the spotlight by the second respondent is disclosed in the FGM Convenor Handbook which is in the evidence as Exhibit 3. The issue was also addressed in Family Group Convenor 1's evidence. In terms of the preparation for a family group meeting, the handbook sets out ten key steps to be followed by the convenor. Relevantly, the second step is to complete an ICMS/case review and the third step is to meet with the child safety officer and team leader.
In terms of Step 2, the handbook says that the convenor "must acquire a thorough knowledge of the current child protection concerns, the reasons for ongoing intervention, the child protection history…" Further the handbook says that to obtain this information the "convenor must undertake a review of the case material" including "ICMS - investigation and assessments (IAs), case notes, previous case plans/review reports". The handbook also states that the convenor "should also ensure they review the relevant case notes on ICMS to make sure that they have up-to-date information that may not be included in the referral, particularly if some time has elapsed since the FGM referral was made".
In terms of Step 3, the handbook says that the convenor must arrange to meet with the child safety officer and the team leader to obtain more detailed information about a range of issues impacting on the family group meeting process. The handbook says that during the meeting with the safety officer and team leader the convenor should request information about certain matters including the history and issues that may impact on the family's participation in the process including a history of violence. It is also stated that "any safety concerns should also be discussed".
The facts are that when she got the Tara file on 4 January 2012 the second respondent rang the team leader, Ms Childs, to discuss the matter. In this discussion Ms Childs informed her about the threat made by the father. According to Step 3 in the handbook the second respondent was required to make contact with Ms Childs and arrange a meeting to discuss a range of matters. Significantly however in terms of the second respondent's allegation she was accountable under Step 2 in the handbook for obtaining all relevant information and she was required to conduct a review of the ICMS records and also case notes and reports.
Further the effect of Family Group Convenor 1's evidence about the steps typically taken by family group meeting convenors to ensure meetings were safely conducted, was that the convenor had a responsibility to assess risk and, if necessary, seek advice or assistance from her supervisor, in order to ensure all reasonable measures were taken to ensure the safe conduct of the meetings.
It seems reasonably clear to me that the second respondent was just doing her job when she reviewed case notes and became fully conversant with the history of the matter that she was dealing with and it was wrong for the second respondent to suggest that she needed to conduct these investigations because of failures or omissions on her employer's part. It diminishes her credit that she retrospectively assigns blame on her employer in order to support her defence of the appeal.
Workload
The second respondent submitted that her injury was attributable in part to an excessive or unreasonable workload arising generally from an unequal distribution of work between convenors and more particularly from the requirement that she attend five family group meetings on the one day at Ipswich on 23 March 2012. The second respondent said that she was overwhelmed by the cumulative impact of the meetings on 23 March 2012 and said that by the end of the week "she was completely shattered" (T2-21). Her ability to cope had been diminished by the fact that she had also been required to convene two other family group meetings earlier in the week, bringing the total number of meetings attended in that week to seven.

The validity of the second respondent's complaints about workload was endorsed by Co-Worker 1 who said that the second respondent had complained to her about an unequal workload. She advanced the opinion that, based on her knowledge of case loads, the allocation of workloads to family group meeting convenors was uneven. She said that the second respondent became more stressed with her workload "because it was so high and she was trying to get through an awful lot." Despite this evidence Co-Worker 1 said that the second respondent was not necessarily singled out, but that the second respondent was a very hard worker and that "they gave her a lot more cases because she powered through the work".

The second respondent said that her Manager was also aware of her concerns about a disparity in the distribution of work among the convenors and said that she raised the issue with her Manager in the supervision meetings (T2-17). Despite this evidence the second respondent acknowledged that it was open to reallocate or discuss the reallocation of matters in the Friday family group meetings. She also accepted that at these meetings the convenors would discuss their workloads and that if necessary work could be redistributed (T2-81). Family Group Convenor 1 described the Friday convenor meetings as "a general workload discussion".
Despite the evidence about the Friday meetings, neither Family Group Convenor 1 nor Family Group Convenor 2 gave evidence supporting a view that the second respondent raised concerns about her own workload or about an unequal distribution of work at these meetings. Further, other than Co-Worker 1's supportive comments, objective evidence was not produced setting out the relative workloads of convenors and pointing to a conclusion that the second respondent was being allocated more work than her peers.
The Manager denied that the workload issues had been raised with her by the second respondent. In this regard she was supported by the supervision meeting records of discussions between the Manager and the second respondent on 6 January 2012 and 6 March 2012 (Exhibits 8 and 9). Neither of these records disclosed that the second respondent was experiencing any difficulty with workload. The entry in the record of meeting on 6 January 2012 under the standing item heading of "Workload issues/update" read "Workload good", while the 6 March 2012 entry stated "Workload ok".

In terms of the Ipswich meetings on 23 March 2012, there was no evidence that the second respondent had expressed any concern or apprehension about the scheduling to her team leader, Ms Pittaway. Further, a series of emails about preparations for some of the meetings (Exhibit 36) do not suggest anything other than a "business as usual" state of mind on the part of the second respondent. Having said that it is accepted, as is disclosed by one of the emails, that the second respondent's schedule for 23 March was demanding (Exhibit 36: Email sent by the second respondent at 5:13 pm on 21 March 2012):
"Yes, it is still on - Tony has booked all day. The first FGM starts at 9:30am, 2nd 10:30am, 3rd 12:30pm (Migala), then Bate starts at 2pm and 3:30pm. A very full day!!"

Whether or not the second respondent's workload on 23 March 2012 was excessive or exceptional is difficult to determine on the evidence. Given Family Group Convenor 2's evidence that she had, on a number of occasions, convened three or four meetings in the one day (T3-54), it can be concluded that the convening of five meetings on the one day would not be typical. Further given that the second respondent had the additional burden of travelling from Toowoomba to Ipswich and back, it can be accepted that her schedule for 23 March 2012 was demanding. Significantly however there was no evidence adduced to the effect that the level of activity on 23 March 2012 should be considered regular or frequent. It may therefore have been an isolated event, perhaps related to Ms Pittaway's preference to clear commitments prior to commencing a period of leave.

As it was, despite whatever stress was associated with the Ipswich meetings, the second respondent resumed work as normal on the following Monday and completed the week at work. The implication drawn by the appellant in this respect was that the 23 March 2012 meetings did not have any adverse effect on the second respondent. The second respondent declined to provide any explanation for her capacity to complete the week at work and said that she had no recollection of her time at work in the week ending 30 March 2012. She accepted however that, as far as she was aware, she did not inform her Manager that the meetings on 23 March 2012 were a cause of stress for her (T2-87). Nor, on the evidence, did she inform the other convenors.
Only limited reference was made about workload in the contemporaneous notes of Dr Ali and Ms Landers arising from consultations in May or June 2012, while no reference was made to the 23 March 2012 meetings. There was nothing to indicate that the second respondent's attendance at these meetings played a significant part in the development of her injury. The notes of the second respondent's attendance on Dr Ali on 22 May 2012 included a reference to "complaining of workload", while the mental health assessment completed on 23 May 2012 included a reference to "not coping with her job condition". The notes of the attendance on Ms Landers on 30 May 2012 include a reference to "unequal work load". When considered in conjunction with all other matters raised in these consultations, and in conjunction with all the evidence relevant to workload, these entries are not sufficient to establish that workload was a significant contributing factor to the second respondent's illness or injury.

Camping Trip

On 10 February 2012 the second respondent had applied for, and was granted, recreation leave for two weeks commencing 2 April 2012. It was the second respondent's evidence that when she was driving home on the last day of work before the commencement of her recreation leave (Friday 30 March 2012) she said to herself that "I can't do any of this anymore; I've got to go - and I started packing a bag". When she got home she told her husband that she was leaving him. In response, he suggested that the second respondent take her daughters camping and have a break away. Her husband also suggested that his mother join them on the camping trip and after phoning her in her Logan residence she accepted the invitation and proceeded to travel to Toowoomba. As it turned out, her husband helped them transport their gear to the camp site and helped set up the camp before deciding to stay the night.

At some point during the evening a serious family altercation eventuated involving the second respondent, her husband and one of their daughters. After the altercation the second respondent's husband left the camp and returned home. The following morning the second respondent and the rest of the family packed up and left the camp site. The second respondent then travelled with her mother-in-law back to Brisbane and stayed with her for a few days.

The second respondent's version of events was contradicted in certain significant respects by her husband. Her husband said that the camping trip was pre-arranged, that his mother had already travelled from Brisbane and was at the family home, and that his wife did not inform him that she was leaving the marriage until the next day (after the altercation in the camp site). I prefer the husband's version of events for the following reasons:

-        A pre-arranged camping trip was consistent with the commencement of annual leave;
-        It seemed unlikely that an elderly lady would travel at short notice and in the evening from Brisbane to Toowoomba before embarking on the 45 minute drive to the to the campsite;
-        If the camping trip was pre-arranged and the second respondent's mother-in-law was waiting with her husband to head off to the camp site when the second respondent arrived home, than it was more likely than not, that the second respondent did not inform her husband that she was leaving him until the following day;
-        The decision to leave the marriage the following day logically flows from
the husband's unacceptable behaviour at the camp site.

The seriousness of the altercation was a matter in contention in the evidence. Not surprisingly both the second respondent and her husband played down the gravity of the event. However the evidence given by Family Group Convenor 1, which I accept, gives the incident a very serious ranking. This ranking is also consistent with what happened after the event. The altercation was so serious that it caused the husband to leave the camp site soon after the event despite his alcohol consumption; it caused the rest of the family to abandon the trip the following morning; and it caused the second respondent to leave the family home and live with her mother-in-law. It is also my finding on the evidence that it caused the second respondent to inform her husband that the marriage was over and that she was leaving him.

Early the following week, and in the first week of her annual leave, the second respondent returned to Toowoomba and spoke to her Manager. She told her Manager that "I've just left my husband and I need to get something from work so I can get a rental unit - confirmation that I work there or whatever - whatever the rental people needed" (T2-25). She then requested another four weeks recreation leave which was approved by her Manager (T2-23). It was the Manager's evidence that on 3 April 2012 she received a call from the second respondent who told her about her circumstances (T1-35):

"She didn’t go into a lot of detail. She just said that she’d left the home. She’d had a dispute with her husband and she needed to find some accommodation, and would I complete the rental authority. And I’m not sure if that was the time, or later in the next week or so, we discussed extending her leave. So ---"

The second respondent did not return to work from her absence on recreation leave until 14 May 2012. No evidence was adduced suggesting that during her period of leave, the second respondent asserted to anyone that she was suffering from symptoms of stress or anxiety arising from the performance of her work.

Drive to Ipswich

The Manager said that after the second respondent's return to work on 14 May 2012 she talked regularly with her, and usually on a daily basis. The Manager said that when the second respondent returned to work she was quite emotional. She said that because the second respondent had been on extended leave she did not have any current referrals and she was assigned to administrative and support functions within the office (T1-35). In cross-examination the Manager gave the following evidence (T1-55):
"She did tell you about some personal issues, didn’t she? ---Yes, she did.
But she also told you about some of the difficulties she was having meeting directly with clients? ---Yes. She said she was emotional and she was concerned with meeting with clients and having phone calls with them."
The Manager denied that the second respondent said to her that she was not ready to deal with clients. She said that the second respondent told her that "she got emotional while talking to a client on the phone" (T1-56).

The second respondent agreed at T2-108 that she did not raise the Tara incident nor the 23 March 2012 meetings in her discussions with her Manager. She said that she gave her Manager "a general complaint that I wasn't coping. I wasn't able to deal directly with clients and I had an inability of making phone calls." She said that at this point in time the family separation was not a factor because by then she had returned to the family home. She said that the separation had only lasted three and a half weeks.

Family Group Convenor 1 also gave evidence about what happened when the second respondent returned to work on 14 May 2012. She said that her manager had told her and others that the second respondent was in an emotional state because of her personal circumstances and that Family Group Convenor 1 and the other convenors were to support her "until she felt okay". She said that she did not recall the second respondent telling her that she was having problems in dealing direct with clients (T1-17).

It was the second respondent's evidence that when she returned to work on 14 May 2012 she had a discussion with her Manager. Her evidence about the matter is recorded at T2-27. The second respondent said that she mentioned to her Manager that:
" … I wasn’t coping; I was very emotional, and I just couldn’t deal with any form of conflict with clients - couldn’t make phone calls. I found, once I’d returned to work, in the first day I realised I - I can’t pick up the phone - let - and went in and let her know about that, and she - she and her worked with possible strategies to try and get me to be able to make the phone call."
The second respondent said that these difficulties meant that she could not perform her role. She said that a major part of her role was facilitating meetings with various stakeholders and "if I can't have a conversation with someone, well I'm not doing my job".

The Manager said that just prior to 21 May 2012 the second respondent suggested that she should accompany Family Group Convenor 1 on a trip to Ipswich for some family group meetings. The proposal was that the second respondent would take notes and assist Family Group Convenor 1 but not take any part in the conduct or facilitation of the meetings. The Assistant Regional Director confirmed that in early May 2012 she was asked to discuss a proposal put forward by the Manager relating to the second respondent's return to work on 14 May 2012. She said that the proposal was that the second respondent "would do some administrative work to assist the other FGM convenors, and then to accompany them on meetings just to reorientate herself to contact."

It was Family Group Convenor 1's evidence that the second respondent accompanied her on the drive to Ipswich on 21 May 2012 because it was suggested that the second respondent "could come and observe to gauge how she was feeling about being back in the workplace and dealing with a meeting and our clients." Family Group Convenor 1 said that when the second respondent came back to work their manager had a conversation about the second respondent "not being in an emotional state to resume. All of her duties, she was assisting us. So it was just a progression for herself, I suppose" (T1-12).

The second respondent gave evidence about her conversation with Family Group Convenor 1 on the trip to Ipswich on 21 May 2012. She said that as they were driving down the range she discussed how useless she felt (T2-28):
" … about not being able to do my job properly and that I’m asking you convenors to help me out and make the phone calls for me and setting things up, and I became - I was crying. I was emotional by that - at that point, and it just continued all the way to Ipswich ..."
The second respondent then said that she talked about the incident that happened at the camping ground and referred to her husband being assaulted by her daughter. The second respondent said that while she separated from her husband after the incident she had moved back into the family home a few weeks later.
Family Group Convenor 1 said that on the drive to Ipswich on 21 May 2012 she and the second respondent discussed a lot of things but that in particular the second respondent talked about events relating to the separation from her husband. In this regard she said that the second respondent told her that while she and her husband were camping over Easter "she had been quite seriously assaulted by her husband in the presence of - I’m not sure whether it was one or both of her daughters and her mother-in-law". Family Group Convenor 1 said that the second respondent told her that after the incident she and her mother-in-law and her daughters had left the camp site, and that they had parted company with her husband. Family Group Convenor 1's recollection about how the second respondent had described the assault is set out in lines 39 to 42 of T1-13.
Family Group Convenor 1 said that she did not recall the second respondent telling her that she could not face work. She said that when they arrived at Ipswich the second respondent refused to get out the car, that she was crying, and that she was extremely emotional. She said that it was clear to her that, in that condition, the second respondent would not have been able to "face anybody, work colleagues included, and there were a lot of work colleagues at that building" (T1-18).
The Manager said that she spoke to the second respondent on the day after the Ipswich event and then sent her an email (Exhibit 13) enclosing details relating to an early intervention program. The Manager said that this program assisted staff who needed access to counselling. The Manager said that the second respondent did not return to work, and at some point submitted medical certificates supporting her absence. The Manager was still of the view that the second respondent's condition, including the period of absence following the Ipswich trip, was attributable to personal issues.
I have no reason to doubt the veracity of the evidence provided by Family Group Convenor 1 and prefer her version of events over that given by the second respondent. The evidence supports a conclusion that the second respondent's decompensation on 21 May 2012 was directly related to non-work stressors that she discussed with Family Group Convenor 1 on the drive to Ipswich. There was no independent evidence of any work-related stressors when the second respondent commenced her period of leave. She was not exposed to work-related stressors when she was on leave. She did not complain that the administrative work that she performed in the first week back at work caused her stress and anxiety. It was in this context that she decompensated on the road trip to Ipswich when discussing the camp site incident.
June to September 2012
On 18 July 2012 the Manager received an email from the second respondent (Exhibit 16) in which she advised that she was unsure that she would be given a clearance to return to work at the end of the month. She then stated that she had "very distressful events occur in recent weeks" and referred in specific terms to events associated with both of her daughters. She said that when she thinks about going back to work she feels nauseous and often sobs uncontrollably. She concluded by saying that she was not the person that she usually was but that she was very focused on "getting back to normal". In this communication the second respondent identifies specific stressors that may not be considered the cause of her illness but which may have worsened her psychological state.

On 31 July 2012 the Manager received an email from the second respondent in which it was stated that she was "working towards a return to work" and that her psychologist would prepare a return to work plan in the next couple of weeks. No reference was made to work-related stressors but it is relevant that when the return to work plan was sent to the Assistant Regional Director on 24 August 2012 (Exhibit 22) its content excluded direct client contact and focused on "administrative work typing up case plans". The return to work plan was preceded by a statement that the second respondent was "currently involved in psychological therapy to address stress-related issues. As you are aware she has been unable to attend work for a period of time because of those issues. She is however making good progress in therapy and is not at a point where she is able to return to work".

On 24 August 2012 Ms Landers wrote to the Assistant Regional Director (Exhibit 22) referring to the second respondent's "stress-related issues" and proposing a return to work plan. The Assistant Regional Director emailed Ms Landers in response on 30 August 2012 (Exhibit 23). In this email the Assistant Regional Director said that she was not able to support the return to work plan and stated that as the second respondent's illness was not work-related, she was not able to support a return to work plan until the second respondent was "able to move quickly into a direct client contact role". She said that she would support a return to work plan which provided for administrative and support work in the first week and a reduced case load in the second week.

The Assistant Regional Director said that she spoke to the second respondent on the telephone on Saturday 1 September 2012. She told the second respondent that she could not support the return to work plan proposed by Ms Landers. On the same day the Manager received the following text message from the second respondent:

"I spoke with Lisa this morning who advised that she cannot agree with the return to work proposal. I am devastated at the lack of support given to me. I am completely floored after all the effort I've put into my job. Unfortunately I will now be lodging a WorkCover claim although it was the last thing I wanted to do as I've already discussed with you. I now feel completely useless again."

Consistent with her evidence over time, the Manager reiterated that she was surprised by the reference to a WorkCover claim because there had been no prior indication that the second respondent's illness was work-related. The text was forwarded to the Assistant Regional Director who said that she was surprised that the second respondent foreshadowed making a WorkCover claim and that she had not seen any prior information that connected the second respondent's illness with work-related factors.

It was Injury Management Advisor's evidence that it was not until early September 2012 that she became aware that the second respondent was claiming that her condition was work-related (T1-74). Injury Management Advisor's evidence at T1-73 was that she thought the second respondent's absence from work was motivated by personal reasons, not work reasons.

Injury Management Advisor said that she had been informed by the second respondent in a phone conversation in early September 2012 that she wasn't ready to come back to work yet and that she had a lot of issues going on at home. Injury Management Advisor admitted that the second respondent had subsequently challenged the view that her problems were purely personal by saying in a text or email that "she was shocked" that Injury Management Advisor drew the inference that her injury was not work-related. Injury Management Advisor also accepted that the second respondent had told her that she could not face work and was having difficulty in dealing direct with clients.
Injury Management Advisor said that she met with the second respondent on 4 September 2012 to discuss the WorkCover and income protection processes. After the discussion she formed the view that the second respondent would apply for income protection in lieu of making a WorkCover claim. The second respondent's evidence at T2-32 was to the effect that during Injury Management Advisor's visit, when she asked for the WorkCover forms, Injury Management Advisor said that the forms were not relevant because "all your issues are personal and not work-related". Injury Management Advisor did however inform her of the WorkCover process. After the discussion the second respondent said that she sent a text to her Manager stating that Injury Management Advisor did not know her background of work-related conflict. As with some other references to work-related conflict, the second respondent did not make clear whether she was alluding to events occurring before or after 1 January 2012.
The QSuper income protection claim form (Exhibit 28) dated 7 September 2012 was completed after the second respondent had foreshadowed the lodgment of a WorkCover claim. Consistent with this intention the claim form included a statement made by the second respondent that "direct client contact increases my anxiety levels to unmanageable level at this time. This is due to having repeated exposure to abusive clients over a number of years". No particulars were included in the statement and it is not clear whether the reference to abusive clients was directed at particular events in 2012, to events occurring before 2012, or to both.
Medical Evidence

The second respondent first saw Dr Ali on 6 February 2012. The medical records of consultations with Dr Ali which are in the evidence as Exhibit 44 show that "smoking" was the reason for the February visit.

The second respondent next attended on Dr Ali on 22 May 2012. Dr Ali said in his evidence that the second respondent saw him for the purpose of securing a referral to a psychologist. Dr Ali scheduled a longer consultation the following day to obtain a history and further assess the second respondent's psychological condition. Entries in the medical records show that on 22 May 2012 the second respondent presented in a teary condition, was not coping, and complained about her workload. The notes of the consultation on 23 May 2012 refer to a mental health assessment and a mental health plan.
The mental health assessment, which is part of Exhibit 45, included the following information relative to the second respondent's "Mental Health History/Treatment":
-        Has been quite normal during the childhood and teenage years until recently
-        Is not coping with her job condition at the moment (working in child safety)
-        Is very anxious about being involved or exposed to negative situations at work
-        Has major issues at home with her 13 year old daughter ….

It was the second respondent's evidence that she complained to Dr Ali on 22 May 2012 about workload and client conflict. She did not recall whether she raised the 23 March 2012 meetings but said that she did tell him about the Tara incident.

After preparation of the mental health care plan, the second respondent was referred to Ms Landers. The record of the next consultation with Dr Ali on 31 May 2012 confirmed that the second respondent had seen a psychologist and described her condition as "depressed". Further visits took place on 21 June 2012, 6 July 2012, and 23 July 2012. All visits deal with psychological issues but there is no record of cause. An anti-depressant medication was prescribed at the 6 July 2012 consultation. Work is mentioned in the consultation on 25 September 2012 when a clearance letter for work was discussed and the second respondent said that a position which did not involve direct contact with clients had become available.

On 2 October 2012 Dr Ali issued the second respondent with a workers' compensation medical certificate. The certificate recorded a diagnosis of "depression" and included a worker stated date of injury of 1 April 2012. The worker's stated cause of injury was recorded as "Client conflict". In response to a question whether the injury was consistent with the worker's description of cause, Dr Ali marked the box that said "Uncertain". His explanation for the uncertainty (T3-51) was to the effect that anxiety and depression are not triggered by a single incident, that he believed that the second respondent had previously seen a psychologist and that he was not sure whether the second respondent's current depression "was totally related to the work injury". He also said that he took the view that because the second respondent had been referred to a psychologist for further assessment, the psychologist should express the opinion on whether the injury was consistent with the worker's description of cause.

The second respondent first attended on Ms Landers on 30 May 2012. In the period immediately after this, further consultations were held on 20 June 2012, 28 June 2012, 4 July 2012, 13 July 2012, and 20 July 2012. In a report sent to Dr Ali on 23 July 2012 Ms Landers identified five stressors which were relevant to the second respondent's symptoms. The stressors listed were:
-        Conflict and hostility encountered on a daily basis in the workplace
-        Intra-family conflict
-        Discovery of her mother's body after her death in 1999
-        Assault on her eldest daughter and her daughter's decision to leave home
-        Repeated exposure to stress at former workplace (Department of Justice).

Ms Landers' evidence about the 30 May 2012 consultation included the following extract (T3-58):
"Okay. So just working through my notes, it looks like I was doing some history taking there in terms of the presenting issue and the thing she talked about immediately was the fact that she had left her husband just previously over the Easter period. That 2012 had obviously been a shocking year for her and that there was an incidence the previous week where she was just unable to complete her work role. She couldn't get out of the car to enter a, you know, work meeting in Ipswich."

In Ms Landers' notes of the 30 May consultation (Exhibit 51) she recorded four items under the heading "Presenting Problems and Observations". The first matter related to her separation from her husband although it was added that the couple had got back together before the consultation. The second entry stated "Last week - couldn't get out of car for family meeting - Ipswich". Under the heading of "Work History" the entry in part stated that "leave since Easter - Back to work 2 wks ago - 5 days - couldn't do it". The third entry read "Remedial massage therapist", while the fourth entry stated "long service - DPP". Entries under the heading of "Problem History" included reference to chronic daily headaches, sleep problems since February when she gave up smoking, her husband's controlling and overbearing manner, and "no appetite". Later in the notes reference is made to an "unequal work load" at work. The notes also included many references to family stressors. Ms Landers also included a reference to "phone phobia" which she said derived from a statement made by the second respondent to the effect that she had experienced some anxiety in using the phone following her return to work on 14 May 2012.

In her evidence the second respondent attempted to assert that a reference in the notes to "poor sleep" was to be traced back to the Tara incident and that it "was everything to do with work" (T2-51). This evidence diminishes from the second respondent's credibility because as was pointed out to her in cross examination, Ms Landers' notes clearly attribute the sleep deprivation to the second respondent's decision to give up smoking in February that year, an outcome which was consistent with the attendance on Dr Ali on 10 February 2012 and the second respondent's acceptance that she was a heavy smoker and that she used to smoke 25 cigarettes a day.

In her evidence in the proceedings Ms Landers said that she formed the following view of the second respondent's condition after the first visit:

"All right. So after that first visit, what was your - did you form a view as to what sort of condition she was in? ---Yes, she was clearly in a state of high anxiety and there were some symptoms of depression there but because of other symptoms like emotional numbing, the fact that she was - you know, sort of - she reported that she had been thinking about her mum's death, I just wanted to explore whether there was a trauma reaction there because her distress was so intense. And so I think the most apparent trauma in the information that she had provided me on that day was the experience of her mum's death because she had found the body and so I just needed to rule that out, you know, one of the first things I wanted to come back to."

Despite the content of the early consultations, Ms Landers said that when looking back across all the consultations she formed the view that the main issue confronting the second appellant was the workplace stressors that she had experienced over a number of years. She said that she was conscious right from the first assessment interviews that the second respondent had been using a "toughing it out" strategy to cope with workplace stressors. Ms Landers said that her view that workplace stressors were the main problem for the second respondent was reinforced as she attempted to get her back to work (T3-67):
"And just on that point, did you form a view as to the significance of those workplace stressors? ---Yeah, that was a view that was reinforced as we attempted to get her back to work. I’ve noted that the main avoidance was of the workplace, and that’s where I was making judgements about where the main stressors were. That there were certainly family stressors, but she’s been able to maintain relationships with her family throughout. That’s not really been a tough work of therapy. We’ve been able to implement interpersonal skills that she can apply them and actually in the family relationships. She’s currently not living at home but she still maintains ongoing contact with both the girls and with her husband. But we just keep blocking - coming up against that block when she tries to go back to work. That seems to be where the - you know, the main source of her stress."
Concurrent with her attendance on Ms Landers, the second respondent, with other members of her family, also accessed counselling from Lifeline where the focus was on her marriage difficulties and problems with her daughters. The first session took place on 10 July 2012, and by the end of December 2012 ten more sessions had been completed. The records of these consultations are in the evidence as Exhibit 31.

WorkCover requested Dr Phillipson to prepare an independent psychiatric report on the second respondent. For this purpose Dr Phillipson assessed the second respondent on 14 May 2013. His report arising from the assessment is dated 16 May 2013 and is in the evidence as Exhibit 52. Dr Phillipson had completed a prior assessment of the second respondent on 23 April 2013 in relation to a QSuper application. On 24 October 2013 WorkCover requested Dr Phillipson to prepare a supplementary report. This report was dated 29 October 2013 and is in the evidence as Exhibit 53.

In his 16 May 2013 report, Dr Phillipson diagnosed the second respondent with chronic adjustment disorder and concluded that there was a direct relationship between the adjustment disorder and the work stressors she had described. The report stated that there appeared to have been a number of stressful events during the second respondent's work over the past several years "culminating in what could be described as her 'breakdown' on 30 March 2012 and her decision to leave work in mid-May 2012 following her inability to attend a family group meeting in Ipswich". The report concluded that the second respondent's employment had been a significant contributing factor to the development of her adjustment disorder. In so concluding particular reliance was placed on the events related to the 23 March 2012 Ipswich meetings where it was noted that the second respondent had attended six or seven meetings and that there had been a threat from a major well-known drug family. The report noted that the second respondent "had what could be described as a 'breakdown' after that meeting".
Dr Phillipson subsequently modified this opinion in his report dated 29 October 2013 after having the benefit of reviewing further material. His modified opinion was to the effect that personal stressors and work stressors contributed equally to the development of the second respondent's adjustment disorder and that both types of stressors were significant contributing factors.

The appellant challenged the validity of Dr Phillipson's conclusions on two grounds. The first ground was that the conclusions were influenced by events occurring prior to 2012. The second ground relied on the very significant inaccuracies in the history provided by the second respondent. In terms of the first ground, it was Dr Phillipson's evidence that his report was "premised on all of the history that I received including, as you say, the stuff before 2012" (T3-77). This view left the matter for resolution as whether the removal of the pre-2012 history changed Dr Phillipson's opinion that the employment should continue to be considered as a significant contributing factor to the development of the injury.

In terms of the second ground, attention was drawn to inaccuracies in the version of events given to Dr Phillipson about the 23 March 2012 Ipswich meetings and what happened thereafter. The second respondent had told Dr Phillipson that she "had six or seven meetings that day" and that she was "a mess by lunchtime" because of "a threat from a major well-known drug family". She said that after returning home she told her husband and children that she needed a break and went to stay with her mother-in-law for a few days. The second respondent said that she took recreation leave and had six weeks off in total.

The significant inconsistencies included that the second respondent did not attend six or seven meetings on the day, she had not been threatened by a drug family, she did not leave home upon her return to Toowoomba, and she did not commence a period of annual leave but in fact resumed work as normal the following Monday and worked through that week. Further, if it were implied, the annual leave was not spontaneously taken, but was pre-approved leave.
In the version of events provided to Dr Phillipson the second respondent constructed a scenario in which the Ipswich meetings had triggered a downward spiral in her emotional and psychological condition which culminated in some form of breakdown and a decision to leave the family home for a few days and to take an extended period of leave. The version constructed by the second respondent was highly persuasive and contributed to Dr Phillipson's conclusion that there was a "direct relationship between the appearance of the Adjustment Disorder and the work stress" outlined by the second respondent.
The inconsistencies in the versions of events provided over time support a finding that the second respondent was not a reliable historian and that, in the event of any conflict in the evidence given in the proceedings, caution should be exercised before preferring the second respondent's version.
The appellant claimed that Dr Phillipson's final opinion supported its case. The submission was that when Dr Phillipson was apprised of the correct history he agreed that at least some, or all, of the work-related stressors may not have been a significant contributing factor. Dr Phillipson's evidence in this regard was given at (T3-89):

"Can you give - can you proffer an opinion of how important or significant work has been in that development of her condition? ---I believe that in my subsequent report I came to the view that they were of equal significance. Having been told now that the back to back meetings issue was incorrectly reported to me, I would say that probably the work remained a factor, but that on balance probably the personal issues were slightly more significant."

Dr Phillipson also conceded that if the history provided to him in relation to the Tara incident was not correct, that the second respondent's attendance at the Tara meetings would have been a contributing factor, but not a significant contributing factor to the second respondent's condition.
The second respondent took a different view of Dr Phillipson's evidence and submitted that his evidence should not be relied on because the factual basis for his changed opinions had not been proved and there was still an unresolved contest over the underlying facts.

[100]In my view two conclusions about Dr Phillipson's evidence can be drawn. Firstly, no weight should be attached to the opinions of Dr Phillipson in his reports dated 16 May 2013 and 29 October 2013 because of the extent of the historical errors. Secondly, while opinions expressed by Dr Phillipson in the proceedings are relevant, ultimately it is the Commission that must decide whether the employment was a significant contributing factor.

Reasoning

[101]The determination of the appeal is arrived at having regard to the following findings of fact.

[102]In terms of the Tara incident I accept that the second respondent may have felt anxious about the meeting. But whatever the level of the anxiety it was not significant enough for her to reschedule the meeting, to exclude the father from participation, from arranging additional security or taking what other steps that may have been appropriate in the circumstances. While she may have spoken to her husband about the matter or raised it with Co-Worker 1 in the corridor, she did not raise any concerns at the weekly family group meetings nor were any concerns pressed with her Manager or Ms Childs. Further after the event there was no disclosure of any anxiety, stress or illness to her employer, other convenors, or to her general practitioner. In the end result the meeting was conducted uneventfully and there was no evidence after the event to suggest that the arrangements in place were inappropriate or inadequate. Once the meeting had passed life proceeded normally and the second respondent did not draw attention to any particular workplace event causing stress or anxiety until the 23 March 2012 Ipswich meetings.
[103]There was no independent evidence of stress or anxiety leading up to the conduct of these meetings which were also conducted uneventfully. I have no doubt that 23 March 2012 was a very busy day for the second respondent. She had to travel from Toowoomba to Ipswich for meetings commencing at 9.30 am and she was then involved in meetings, near continuously, until around 5.00 pm, before returning to Toowoomba. But a busy work day does not, in the absence of corroborating evidence, simply translate into an illness or developing illness. Further, there was no other evidence led to establish that the number of meetings convened on 23 March 2012 was anything other than an isolated event. It was not a regular or frequent occurrence.

[104]After the Ipswich meetings which were held on a Friday, the second respondent resumed work the following Monday and completed the normal week's work before commencing two weeks recreation leave. Despite the second respondent's evidence, I find that the second respondent arrived home on 30 March 2012 ready to participate in a pre-arranged camping trip involving her mother-in-law and daughters. Her husband apparently had work commitments the following day and his participation in the trip was uncertain. As it turned out, his assistance was needed in the movement of camping gear from home to the campsite, and he also travelled to the camping ground. Upon arrival the husband elected to stay the night with his family.
[105]After dinner, a serious altercation occurred. In terms of its gravity I prefer the evidence of Family Group Convenor 1 over the evidence of the second respondent and her husband. The seriousness of the incident can also be gauged by what happened after the event. The husband immediately left the camp site and returned home, notwithstanding his level of intoxication. The next morning the rest of the family abandoned the camping trip. The second respondent informed her husband that she was separating from him and travelled to Brisbane with her mother-in-law. She returned to Toowoomba after a few days and immediately acted to move into a rental property with one of her daughters. Soon thereafter the second respondent extended her recreation leave by four weeks before returning to work on 14 May 2012. However a week later while travelling to Ipswich with a co-worker, the second respondent broke down after informing the co-worker of the camp site incident and its consequences.
[106]The events leading up to the second respondent's decompensation on 21 May 2012 are to be considered in the broader context where for some time preceding her attendance on Dr Ali on 22 May 2012 she had endured difficult and distressing events within the family over a significant period of time. The family stressors arose from significant levels of conflict between family members and the behaviour and actions of one of her daughters over a period of about two years prior to May 2012. The second respondent agreed that at times she considered her husband's behaviour to be "emotionally abusive" (T2-46); that on occasions her husband used abusive language towards her (T2-48); that he resented her participating in social events related to work; and that at times she found her husband to be "controlling and overbearing" (T2-52).
[107]In terms of the lay evidence, it is difficult to arrive at any other conclusion than that the second respondent's psychological condition as assessed by Dr Ali and Ms Landers in May 2012 arose out of domestic stressors. Nothing occurred during the period of recreation leave to disabuse the employer of the notion that the second respondent had been plagued by domestic stressors. Further nothing happened at work upon her return on 14 May 2012 to exacerbate her condition. But when she travelled to Ipswich with Family Group Convenor 1 on 21 May 2012 the issues and consequences associated with the camping ground assault resurfaced. It was these distressing events that led the to the second respondent's decompensation which in turn made her participation in the work meetings untenable and precipitated an extended absence from work on sick leave.

In terms of the medical evidence while references were made to work stressors in the May consultations with Dr Ali and Ms Landers, domestic stressors appeared more prominent. Exhibit 45 records what Dr Ali was told by the second respondent on 23 May 2012. The content of the mental health assessment supports a prima facie conclusion that work-related factors may have been associated with the second respondent's absence from work, but the very limited elaboration on the relevant entries in Dr Ali's testimony does not assist in making a determination about weight where a mix of stressors are involved. Further while the second respondent may have been reporting to Dr Ali a difficulty in coping with her job conditions or an anxiety about exposure to negative situations at work, these communications may be more about the reporting of symptoms rather than causes of her psychological frailty.

[109]The second respondent first consulted Ms Landers a week later on 30 May 2012. Ms Landers acknowledged in effect that work-related stressors were not at the forefront during the second respondent's initial consultations with her and that it was only over time and after a number of consultations that Ms Landers formed the view, with the benefit of hindsight and a greater appreciation of the second respondent's circumstances, that work-related stressors were the more dominant. In this regard, as I understood her evidence, Ms Landers advanced the opinion that work-related stress or anxiety was an underlying or latent cause and that while family stressors were predominant in the initial consultations, over time work surfaced as the most significant of the contributing factors. However the period of time in respect of which Ms Landers' opinion was formulated, was not clear on the evidence.
[110]Exhibit 49 establishes that the second respondent attended on Ms Landers on ten occasions prior to lodging her WorkCover claim and on thirty four occasions after lodging her claim. The consultations extended over a period from 30 May 2012 to 24 February 2014. It can be presumed that after lodgment of her claim the second respondent would be alert to the desirability of attributing her injury to work-related causes. Ms Landers however advanced a less cynical view of the emphasis over time on work-related stressors. The effect of her evidence was that her approach to the consultations was to focus firstly on stabilising emotions derived from family stressors. The approach was that if family relationships could be stabilised, then the second respondent "could draw on those family relationships for a level of emotional support" (T3-61).
[111]I am unable to accept the invitation inherent in Ms Landers' evidence that I should prefer the conclusion she has arrived at over the findings made about causation on the evidence about events occurring prior to the second respondent's decompensation. This evidence, which emphasised domestic stressors, was broadly consistent with the content of the second respondent's early consultations with Ms Landers. It is also a consideration that in arriving at her opinion, it can be accepted that Ms Landers relied on a history provided to her by the second respondent. Hence the factual basis upon which Ms Landers was acting may have been different to that which has been made out in the proceedings.
[112]The evidence generally supports a conclusion that work-related stressors only became a significant consideration for the second respondent when she turned her attention to her WorkCover claim in September 2012 and focused on attributing work stressors as a significant cause of her illness or injury. In was in this process of attribution that some significant inconsistencies arose in the second respondent's version of events. In this regard I accept that the inconsistencies cast doubt on the reliability of the second respondent's testimony and contribute to a reluctance on my part to prefer the evidence of the second respondent in the event of any significant conflict. Inconsistencies in versions of events provided by the second respondent included:

(i) In respect to the 17 January 2012 Tara meetings, the second respondent initially told WorkCover that "no departmental staff member had informed me as the FGM convener for this family that this serious threat existed" (T2-72). In fact she had been told about the threat by Ms Childs on 4 January 2012;

(ii) Inconsistencies arising from the version of events provided by the second respondent to Dr Phillipson about, or in connection with, the 23 March 2012 Ipswich meetings;

(iii) In respect to the events on the afternoon and evening of 30 March 2012, the contradiction of the second respondent's version of events by her husband;
(iv) The second respondent's insistence that a reason for attending on Dr Ali on 6 February 2012 was her distress arising from the Tara meeting when the contemporaneous medical record and the evidence of Dr Ali was to the effect that the only issue was "smoking";

(v) The second respondent's evidence that her sleeplessness was attributable to work-related stress, when it was clearly attributable to her cessation of smoking.

[113]The second respondent submitted that any errors in historical reporting should be forgiven given her prevailing mental condition, the absence of legal representation and the fact that she was denied full access to her work computer, her files, incident reports and other documentation. I accept that she ought to be given some latitude where her recall of events has differed over time particularly given the tortuous path that her application had taken between WorkCover and the regulator and the fact that she was called upon to give her version of events on a number of occasions between 24 September 2012 when she lodged her WorkCover claim and January 2014 when it was finally resolved by the regulator.

[114]These circumstances however do not forgive the second respondent for inconsistencies which were not inconsequential mistakes in recalling events in their correct chronological order, but amounted more to a significant reconstruction of events to best suit her circumstances. The highly persuasive, but fictional, account given to Dr Phillipson about her activities on 23 March 2012 illustrated the second respondent's capacity to attempt to rewrite history to promote prospects of acceptance of her WorkCover claim.
[115]While the appellant did not rely on the exclusionary force of s 32(5) of the Act, the evidence and submissions of the second respondent disclosed that her defence of her appeal relied in part on particular propositions asserting that her injury was partially attributable to failures of management or unreasonable management action. Unreasonable management actions were said to be present in the following instances:
(i) The complaint that the second respondent had been subject to an excessive workload, attributable either to a management failure to prevent the scheduling of an unreasonable number of meetings on 23 March 2012 or, to a failure to correct an unequal distribution of work between family group meeting convenors;
(ii) Criticisms of her Manager's management style in that her Manager was "not very approachable" and was not personable, meaning that the second respondent was not comfortable in raising workplace stressors with her; and

(iii) Management failures associated with processes and procedures relating to the threatening situation confronting the second respondent in attending a family group meeting at Tara, including a management disregard for the second respondent's safety in not responding with alacrity to replace the non-functioning phone, a management failure to fully brief the second respondent on the gun threat at Tara, and a management failure to implement all necessary risk minimisation protocols.

[116]The employer's responses to the second respondent's circumstances, as they were known to them, could not be considered unreasonable. The evidence points to an outcome that work-related stressors were not a consideration for the second respondent in the period 1 January 2012 to 30 March 2012. Nor did the evidence suggest that work-related stressors were in play during the short period of time that the second respondent was at work after 14 May 2012. When the second respondent returned to work on 14 May 2012 the employer remained cognizant of her psychological frailness and limited her scope of work in her first week back to administrative tasks in the office. In the second week, the second respondent was not deployed into a lead role but was asked to "second" Family Group Convenor 1 in the conduct of some family group meetings in Ipswich on 21 May 2012. When the appellant decompensated during the Ipswich visit the employer processed leave authorisations and encouraged the second respondent to get psychological counselling through a work program. Whether acting on this advice, or independently, the second respondent immediately sought a referral to a psychologist from her GP. There appeared to be no complaint from the second respondent about her employer's consideration of her circumstances until the return to work plan proposed by Ms Landers in August 2012 was rejected.

[117]The primary question to be answered in this appeal is whether the employment was a significant contributing factor to the injury sustained by the second respondent in May 2012. Considerations favouring the appellant's position are the absence of contemporaneous evidence establishing an association between workplace events in 2012 and the injury, the failure of the second respondent to report relevant symptoms to either her employer, co-workers or a medical practitioner, and the evidence supporting the existence of significant and enduring domestic stressors. In the final analysis I am not persuaded by Ms Landers reasoning that, notwithstanding the apparent position, the true underlying position is that work was the cause of the injury. Beyond this, if considerations of management action are relevant, the stressors relied on by the second respondent to support her defence of the appeal, and which were related to management action, did not arise out of unreasonable management action or management action unreasonably taken.

[118]The appeal is allowed and the decision of the regulator dated 8 January 2014 is set aside and substituted with a decision that the second respondent's claim for compensation is one for rejection.
[119]I order accordingly.

[2015] QIRC 97

22 May 2015