State of Queensland (Department of Education and Training) v Workers' Compensation Regulator
[2016] QIRC 40
•8 April 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of Education and Training) v Workers' Compensation Regulator [2016] QIRC 040 |
PARTIES: | State of Queensland (Department of Education and Training) v Workers' Compensation Regulator |
CASE NO: | WC/2015/79 |
PROCEEDING: | Appeal against a decision of Workers' Compensation Regulator |
DELIVERED ON: | 8 April 2016 |
HEARING DATES: | 13, 14 and 15 July 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Thompson |
| ORDERS: | 1. The Appeal is dismissed. 2. The Decision of the Workers' Compensation Regulator dated 30 March 2015 is upheld. 3. The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Personal injury - Did the personal injury arise out of or in the course of employment - Was the employment the major significant contributing factor to the injury - Reasonable management action - Return to work plan - Perception of reasonable management action - Witness credibility - Appeal rejected - Decision of Regulator to confirm the application for compensation is upheld - Regulator entitled to costs of and incidental to this Appeal. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 550 Q‑COMP v Hohn [2008] QIC 56 WorkCover v Heit [2000] 164 QGIG 121 Adam v Skilled Group & Anor [2013] QSC at [31] to [33]. Freedom Fuels Australia Pty Ltd v Q‑COMP (WC/2010/72) ‑ Decision ‑ < v Toll North Pty Ltd [2015] QDC 156 Q‑COMP v Foote (No. 2) (2008) 189 QGIG 802 |
| APPEARANCES: | Mr M. Healy of Counsel, instructed by Crown Law for the Appellant. |
Decision
State of Queensland (Department of Education and Training) (Appellant) lodged a Notice of Appeal with the Industrial Registrar on 30 March 2015 pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Workers' Compensation Regulator (the Regulator) released on 2 March 2015.
The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) to accept an application for compensation from Narda Salm (Salm) in accordance with s 32 of the Act.
Relevant Legislation
The Legislation pertinent to this Appeal is s 32 of the Act:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if
…
(b)for a psychiatric or psychological disorder ‑ the employment is the major significant contributing factor to the injury.
…
(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 Regulator or an insurer in connection with the worker's application for compensation."
Nature of Appeal
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
In the course of the proceedings, evidence was provided by nine witnesses.
The Commission in deciding to précis the evidence of the witnesses and submissions notes that all the material has for the purposes of this decision been considered in its entirety.
Witness Lists
The witnesses for the Appellant were:
· Derek Brady (Brady);
· Dr Frank Varghese (Dr Varghese);
· Bronwyn Rigby (Rigby); and
· Amanda Maddock (Maddock).
The witnesses for the Regulator were:
· Salm;
· Dr Carly Reid (Dr Reid);
· Dr Phillip Stowell (Dr Stowell);
· Dr John Warlow (Dr Warlow); and
· Dr Margaret Van Maanen (Dr Van Maanen).
Appellant
Brady
Brady, the Principal at the Upper Mount Gravatt State School (school) for the past eight years, having been employed for some 27 years with the Department, gave evidence relating to a number of awards to which the school had been a recipient during his time as Principal. Also during this period of time he had an absence from work due to illness where he underwent "a high dose of chemo and stem cell transplant". In terms of his role description, it included a leadership role where he promoted others such as deputies and heads of curriculum as well as acting as a graduated return to work co‑ordinator for staff returning from work and non‑work related injuries.
In facilitating returns to work additional financial support was provided by the Department for the employment of supernumeraries usually for a ten week period with the capacity to extend in certain circumstances. In one particular case where it was not known whether the staff member would recover from that injury, the Department had some leeway in that case to extend the period. There had been numerous other cases where extensions had been granted.
In October 2013 Salm had commenced a graduated return to work program and he had been able to obtain an extension for her for term one of 2014. In obtaining the extension he approached the organisational health section of the Department who then approached Human Resources. He had been informed by Rigby to make sure all the processes were followed correctly regarding Salm's return to work and that she was given every opportunity to work in classrooms and be supported in the process. Evidence regarding five other return to work programs managed by him identified varying timelines for a full return to work. On each of those five occasions they had been successfully returned to work.
In managing Salm's return to work from a non‑WorkCover injury he had communications with her treading doctor (Dr Van Maanen) who in correspondence (dated 1 October 2013) indicated her agreement with the return to work plan that had been discussed between Salm and Brady. Attached to the correspondence was the return to work plan [Exhibit 3]. Brady had spoken to a number of other persons about her return to work which included Phil Guy (Acting Principal at Wandal Heights), Rigby and Maddock. In terms of his discussion with Rigby, it related to seeking advice as he did not have a return to work trained officer on the site. The recommendations attached to Dr Van Maanen were followed in full until the end of the term at which time he was informed by Salm she felt uncomfortable with a particular child. The recommendations had formed the basis of Salm's return to work process. With regards to Salm's medical situation she had requested that no‑one be made aware of her condition due to the sensitive nature of it which Brady complied with during the return to work.
Salm had been employed at the school from 2009 to 2014 during which time he approved a request in around 2010 ‑ 2011 for her to undertake part‑time work at Griffith University which required giving her a reduction of her fraction of work. In or around the end of 2012 Salm informed Brady of having undertaken a number of medical tests which had caused her some concern about the pending results. In early 2013 Salm confirmed to Brady she was suffering a serious medical condition, stipulating to him that she did not want anyone on staff other than him to know of her condition. Salm ended up being absent from work for the period of February 2013 to 15 October 2013 during which time he rang her two to three times to "check in". He was sensitive to the nature of her illness and also in that time spoke to her husband. The practise of checking in applied also to other staff members who were absent from work as there were avenues of assistance available in the form of a Chaplin and a social club that could assist staff.
In discussions with Salm about her return to work she had not expressed any concern or complaint about the proposed program which was the six week program approved by Dr Van Maanen. A graduated return to work agreement [Exhibit 7] identified the implementation of her graduated return to work. Correspondence was received from Dr Stowell (dated 7 November 2013) in which he raised issue with the difficulties Salm was experiencing in coping with the extra work in stage 2 of the return to work program suggesting that each stage be extended by a further three weeks and that working as a "teacher's classroom assistant" would be less stressful for her than dealing with some difficult children. Brady's response was to extend the plan to give Salm more time based solely on what Dr Stowell had raised and following discussions with Salm. A further graduated return to work plan was produced to reflect Dr Stowell's concerns which accommodated the extended time periods and placing Salm away from difficult children.
Salm forwarded an email to Brady and Maddock (dated 7 February 2014) which had attached a work capabilities checklist signed by Dr Stowell which was said to reflect the variation to the terms of the negotiated duties discussed with Brady on 5 February 2014. Brady had discussions with Salm the following week who indicated to him she was very comfortable with this plan which was about the type of work she would be doing.
A further graduated return to work document was signed by Brady (dated 10 February 2014) due to a slight change in duties regarding lifting restrictions because of a shoulder condition. On 24 February 2014 he contacted Rigby by telephone to obtain advice about contacting Salm (who did not work that day) to talk her through the program for the next week. Rigby was spoken to about the return to work plan not moving very quickly and the possible need to apply for more funding. Rigby's advice was to make sure the plan was set up so that Salm was successful and to give her every opportunity in the classroom so that he can return her to her previous role. Later whilst on the phone to Salm he produced a document [Exhibit 14] which he said was a planning document for Term 1 ‑ weeks 5, 6, 7, 8, 9 and 10. The detail relating to a reduction in fraction to 0.5 in Term 2 ‑ Year 4 had been an agreed position between Salm and himself to reflect her end goal. Such an arrangement was suitable to Brady which he described as a "great fit" and he told her to raise the checklist with her general practitioner which she undertook to do. The discussion had occupied a time of no more than 15 to 20 minutes with Salm's concluding comments being "I'm happy with this, Derek. I'm looking forward to working with Michelle".
On 25 February 2015 he received a WorkCover claim regarding Salm that indicated she should have been at work that day making it somewhat confusing about her "being fit for duty status". The claim came as a shock to him as there had been no injury recorded at the school nor had an incident report been completed. Further he had the situation of the previous day's conversation with Salm where she had stated "she was comfortable with everything". Acting on advice from Rigby he rang Salm and requested she contact her doctor to rectify his certificate to enable her to be paid for that day. Salm told him not to take offence to what's happening, it was not personal but she thought she was entitled to more time for her return.
With regards to the various graduated return to work agreements, a number of them noted Rigby as the rehabilitation and return to work co‑ordinator due to the deputy principal who normally filled that position having been seconded to another position and school. During the course of Salm's return to work program it was Brady's evidence that he contacted her on a weekly or fortnightly basis with contact being at various times such as after assembly, in special needs area, staff meetings and walk throughs at the school. All discussions were in person except for two phone calls and in those discussions he would raise matters such as:
· How is it all today?
· Are you feeling okay?
· Are you happy with the programme?
· Who are you working with today and which children?
· About her relaxation classes.
· About life changing experiences.
The responses from Salm were she was doing well and happy with how things were travelling, thanking Brady for being flexible enough to allow her to do the relaxation courses in school time. Brady was cautious in his exchanges with Salm about the medical side of things due to the sensitive nature of the injury. He would always finish the exchanges by saying:
"My final line would always be remember, Nada, this is your plan. I can't tell you what to do. I'm not inside you."
Prior to Salm's return to work and during the course of her graduated return to work program she at no time informed Brady that she was suffering a psychiatric or psychological injury nor that she was taking antidepressant medication although she had mentioned the surgery had taken an emotional toll on her.
Salm had at no time complained to Brady about the nature of the graduated return to work program but had commented about the awkwardness which happens in classrooms and making another teacher feel a bit uncomfortable. Brady described his relationship with Salm as very positive, sharing a very good relationship.
Under cross‑examination Brady gave evidence regarding the participation of Salm in school activities and programs prior to her absence from work as well as arrangements that allowed her to undertake some work with Griffith University [Transcript p. 2‑4]. Teaching arrangements prior to the commencement of 2014 were that whilst Salm and Michelle Leivesley (Leivesley) had not taught in the same classroom they had planned activities together [Transcript p. 2‑5]. Brady had developed a graduated return to work plan which had Salm attending work in a staged steps that would take her up to the end of term 4 in 2013 and a further graduated return to work in 2014 [Transcript p. 2‑5]. On 6 September 2013 Brady sent an email to Rigby following a phone conversation with her the previous day which was about the school not having a trained return to work co‑ordinator due to the absence of Phil Guy (deputy principal). Rigby had told him in the absence of the trained return to work co‑ordinator that Brady should undertake that role [Transcript p. 2‑6]. Prior to a trainer being at the school the organisational health team provided support to the principal [Transcript p. 2‑7]. From his previous involvement in return to work plans he was aware such plans could go over two terms [Transcript p. 2‑8]. With the first document he had assistance from Maddock (9 September 2013) after he had received the medical certificate from Dr Van Maanen on 11 October 2013. He explained the circumstances regarding that difference in dates being that in preparing return to work programs sometimes "it's the cart before the horse" [Transcript p. 2‑9]. It was normal practice for a period of "light duties" to be put in place before someone returned to the classroom. In the initial stages of a return to work there are no expectations about a hands‑on type of role [Transcript p. 2‑9]. It was standard for restrictions to be placed on playground duty [Transcript p. 2‑10].
Upon Salm's doctor providing correspondence regarding difficulties she was having with children with behavioural problems Brady pushed back the expected return to teaching duties to comply with the doctors wishes with him telling Salm "if the doctor says you need to take more time, you take more time" [Transcript p. 2‑11]. Brady conceded he had not kept records of every phone conversation with Rigby about return to work but acknowledged an email where Rigby had said there was a need to get clarification from Salm's treating medical practitioner or surgeon regarding clarification of restrictions applicable to her at the commencement of the 2014 year [Transcript pp. 2‑12 and 2‑13].
A return to work plan (dated 27 January 2014) required Salm to work in the learning support department with there being a discussion around that time of Salm returning back to a year 4 class with Brady's evidence being there was no need to record details of this conversation [Transcript p. 2‑15]. The return to the classroom was always going to be slow and graduated [Transcript p. 2‑15]. Brady was unable to recall the exact date or content of a conversation with Salm in February 2014 but acknowledged the flavour of the conversation was about Leivesley feeling uncomfortable working in a classroom situation with Salm. He had no recollection of Salm saying she was overwhelmed [Transcript p. 2‑16] but then went on to recall her words as being:
"Derek, it's awkward in the classroom because I feel that maybe my presence in that room is making this younger teacher feel insecure because I'm a senior teacher." [Transcript p. 2‑17]
Brady understood Salm was having problems with that part of the return to work plan [Transcript p. 2‑18].
Brady maintained he was the return to work co‑ordinator and it was not correct that Rigby had been nominated for the position [Transcript p. 2‑18]. He conceded in a return to work program [Exhibit 11] Rigby was nominated as the return to work co‑ordinator but evidenced it was her role to support him [Transcript p. 2‑19]. Even when there was a return to work co‑ordinator at the school it was still his role to have a "lot of input" into return to work plans [Transcript p. 2‑19]. In the work capability document where Dr Stowell had noted the detailed return to work needed to be discussed with Rigby he did not recall if he contacted her because in most cases he would deal with that situation as it was not complex [Transcript p. 2‑21]. Brady's understanding of the conversation with Salm (on 5 February 2014) was that the year 4 class was fine, the children were fine and it was about her being in "that room" where she felt like an extra [Transcript p. 2‑22]. Brady's "internal plan" for six months ahead had Salm and Leivesley each teaching 0.5 of the class although at that stage he had not discussed the situation with them.
On 24 February 2014 Salm in a discussion with him advanced the proposition she was thinking about teaching part‑time and would like to work with Leivesley on a 0.5 arrangement [Transcript p. 2‑24]. In the discussion he had told her that he needed to look at an end result which required her getting some time in the classroom.
The Department may not have been in a position to offer a further supernumerary [Transcript p. 2‑25]. Salm had told him she accepted in term 2 she would be working four days a week but he denied Salm had said:
· Leivesley was having difficulty working in the cooperative arrangement;
· Leivesley was introverted and did not want Salm hanging around the classroom; and
· Leivesley liked to work autonomously [Transcript p. 2‑28].
Brady denied he told Salm she would have to come up to speed telling her there were "some options to think about" [Transcript p. 2‑29]. There was no program in place where Brady would check in with Salm on a particular day each week or fortnight but somewhere within each week or fortnight he would check in with her [Transcript p. 2‑34]. Brady did not accept that Salm had been upset at the conclusion of the telephone discussion on 24 February 2014 and was not happy with his proposal for her to return to work on a part‑time basis [Transcript p. 2‑38].
Dr Varghese
Dr Varghese a Consultant Psychiatrist in response to a request from Crown Law (dated 12 June 2015) conducted a psychiatric evaluation of Salm and subsequently provided a report [Exhibit 18] (dated 26 June 2015).
The Crown Law request contained a significant amount of background information regarding the application by Salm for workers' compensation and sought Dr Varghese's expert specialist opinion in relation to the following matters:
"1. Did Ms Salm have a psychological or psychiatric injury as at 24 February 2014 ‑ the date of her application for workers compensation?
2. If so, what was the nature of that injury?
3. What was the probable cause or causes of that injury?
4. What was the relative significance of the cause or causes of the injury?"
Additionally Crown Law requested Dr Varghese to address the following in the course of preparing his report:
"1. In your opinion, does Ms Salm suffer from a psychiatric or psychological injury?
2. If she does have a psychiatric or psychological injury, please advise of:
a.the primary diagnosis of the injury, its exact nature, and duration;
b.the extent to which the development of the injury was caused or contributed to by Ms Salm's nominated Factor 1 (as summarised by WorkCover):
Failure of the Education Queensland persons nominated in her graduated return to work paperwork to monitor and comply with the plan in accordance with medical recommendations and to liaise properly with those parties named and associated with the plan
If so, was Ms Salm's nominated Factor 1 the major, significant contributing factor to the development of her condition?
c.the extent to which the development of the injury was caused or contributed to by Ms Salm's nominated Factor 2 (as summarised by WorkCover):
The graduated return to work plan and the process involved was unclear in relation to management of the plan and its implementation
If so, was Ms Salm's nominated Factor 2 the major, significant contributing factor to the development of her condition?
d.the extent to which any other alleged incidents or events caused or contributed to the development of any injury; and
e.the extent to which Ms Salm's symptoms are attributable to (or form part of) the natural history of a pre‑existing psychiatric or psychological condition.
3. On the basis of your examination of Ms Salm, and the material provided to you, do you consider that Ms Salm suffers from a pre‑existing psychiatric or psychological condition? If so, in your objective view, on the balance of probabilities, do you consider that Ms Salm's psychiatric or psychological condition caused or contributed to her injury? If so please describe the extent to which you consider Ms Salm's psychiatric or psychological condition contributed to her injury.
4. If you form the view that Ms Salm has suffered a psychiatric or psychological injury as a result of the factors the subject of Ms Salm's current application for workers' compensation, to what extent is the development of the condition an aggravation or exacerbation of a pre‑existing psychiatric or psychological condition?
4. If, in your opinion, Ms Salm has had outside stressors in her life, to what extent is Ms Salm's psychiatric or psychological condition caused or contributed to by those outside stressors?
5. Are there any other matters you consider relevant in your diagnosis?"
Dr Varghese in delivering the conclusions reached following the evaluation of Salm and offered commentary regarding the information provided to him by Crown Law:
"The documentation clarifies issues particularly with respect to the longitudinal history of emotional difficulties and also regarding complications of surgery. I note that there is significant information that is not available including the reports and notes of several psychologists who have been involved both recently and in the past. I further note that there is no report or notes from Dr Josephine Sundin, the current treating Psychiatrist.
Allowing that further information may cause me to change my opinion I trust the following points are useful to the Court."
Dr Varghese concluded:
· Salm was suffering Major Depression which likely commenced in early 2013;
· Salm was far from ready to return to the workplace in October 2013 and in retrospect a more appropriate management would have been for her to have accessed her QSuper;
· Salm's unfitness to return to work was due to complications from surgery and ongoing shoulder problems in addition to ongoing emotional difficulties from the depressive illness;
· the cause of the Major Depression was multi‑faceted:
-previous episode of depression in 2006
-constitutional predisposition to depression whether in relation to adverse life events or independent of that;
· Salm's Major Depression was likely the salient adverse event of being diagnosed with breast cancer and subsequent complex surgical procedures;
· Salm's contention she was emotionally well prior to her return to work in October 2013 was not borne out by her longitudinal history and at the time of her return to work was already on an antidepressant;
· issues with respect to the return to work program were not ruled out as not aggravating the Major Depression and if Salm's account of issues in the workplace were accepted that the return to work program was implemented without proper consideration of her needs then such a situation may well have aggravated the already depressive disorder;
· an alternate construct was that the depressive illness in addition to the complications of surgery to her shoulder meant that Salm found it difficult to cope with the return to work program and it was not the workplace that resulted in an aggravation of depression but rather her perception of the situation being adverse; and
· whilst accepting a finding of fact by the Court may cause him to change his opinion he was inclined to the view that Salm's difficulties with the return to work program were a result of ongoing depressive symptoms accompanied by ongoing physical difficulties arising from her breast cancer surgery.
Dr Varghese responded to the specific questions from Crown Law in the following terms:
"1. Did Ms Salm have a psychological or psychiatric injury as at 24 February 2014 ‑ the date of her application for workers compensation?
It seems to me that in February 2014 Ms Salm was in a state of Major Depression.
2. If so, what was the nature of that injury?
Major Depression can be a serious condition if the intensity is moderate or more. It is a primary disorder of mood and brings about significant impairment.
3. What was the probable cause or causes of that injury?
This has been described in the provisional formulation and elaborated on in the conclusions above.
4. What was the relative significance of the cause or causes of the injury?
It seems to me that the principal cause of Ms Salm's Major Depression was the diagnosis of cancer and the subsequent multiple surgical procedures as well as some complications from surgery.
I have left open the question on whether the Major Depression may have been aggravated by any putative issues with respect to return to work. I have noted two possible constructs of the data and my inclination to one construct as against the other."
Dr Varghese confirmed that the dose of 20 milligrams a day of Citalopram prescribed for Salm was lower than a psychiatrist would prescribe but certainly effective for Major Depression. Side effects emanating from the use of this medication could be nausea however other symptoms experienced by Salm including crying, night waking and irritability were symptoms of depression.
Under cross‑examination Dr Varghese having opined that 20 milligrams of Citalopram was a low but effective dose also accepted that if there was ongoing depression you would expect the dosage to be increased [Transcript p. 1‑73]. Dr Varghese formed the view that the principle cause of Salm's Major Depression was the diagnosis of cancer but left open the question whether the Major Depression had been aggravated by any punitive issues in respect of the return to work but his inclination was the diagnosis of cancer [Transcript p. 1‑75]. If Salm had been fully recovered from her surgery and depression there would not have been the need for such a prolonged re‑engagement with the workplace. He would have expected a longer period of recuperation due to the nature of the operation [Transcript p. 1‑75]. Dr Varghese had seen Salm some two years after the events at work occurred and in retrospect thought it was too early for her return to work following surgery whilst still being treated for depression [Transcript p. 1‑76].
Note: The period of time between the workplace events and Dr Varghese having seen Salm was one year and nine months and not two years as suggested in cross‑examination [Transcript p. 1‑77].
Whilst Dr Varghese believed that the five kilogram lifting restrictions placed on Salm's return to work were significant he was unaware what duties may have been restricted [Transcript p. 1‑77]. Dr Varghese expressed an opinion that in terms of Major Depression there was invariably a constitutional predisposition [Transcript p. 1‑78]. On what Salm may have been experiencing in the workplace with her co‑workers, it was his "preferred view, which could be wrong, is that her depression was causing her to have perceptions about people in the workplace; that she was criticised, isolated, blamed, principal turned his back on her. These are very common cognitions that occur when somebody's depressed." [Transcript p. 1‑78]
In re‑examination Dr Varghese gave evidence of being a Consultant Psychiatrist since 1978 and he was confident, based on the material provided, to be able to express the opinions he did in his report. He provided an explanation regarding perceptions of the way Salm was treated in the workplace.
Rigby
Rigby, a Senior Injury Management Consultant, was the holder of a number of post‑school qualifications that included a Graduate Certificate in Case Management, Injury Management. In her role at Education Queensland as an Injury Management Consultant her duties included:
· liaison responsibilities with the return to work co‑ordinator, school principal and injured worker;
· assist with QSuper claims;
· assist with provision of injury management services in the workplace;
· provide consultancy to regional staff;
· assist the injured worker regarding medical advice.
Rigby did not often get to meet the person involved in the process and in this case provided support to Brady pursuant to the Department of Education, Training and Employment Workplace Rehabilitation processes.
In undertaking her role in Salm's case she had spoken to Brady in December 2013 about medical information and the first term in 2014. Rigby seldom case managed individuals because there were trained rehabilitation people in the schools and her role was that of a consultant directing the trained staff on their requirement to ensure a safe and appropriate return to work whether that worker was returning from a WorkCover claim or normal sick leave. In the case of all claims there was provision for supernumerary services but for non‑work‑related injury any additional term has to be approved. The parameters for the approval of additional funding revolved around the return to work being achieved in the course of one term whereby a person would return to their full hours or demonstrate the inherent nature of their role and start to take on the duties of the role. The funding approval requires there to be a review of the progression usually performed by the rehabilitation and return to work co‑ordinator at the school. For someone suffering from a psychological injury Rigby proposed that there should be regular meetings to make sure all was being done to assist the return to work.
Rigby understood that Salm had breast cancer and some radical surgeries in 2013 and that she sought privacy around her medical condition which was one of the reasons that Rigby was a "step removed" in providing advice and consultancy to Brady. Whilst she was never advised during the period of September 2013 to February 2014 that Salm had a psychiatric or psychological injury Brady had described a "challenging communication style" with his role and thought it best for him to maintain the role as rehabilitation and return to work co‑ordinator. The first contact between herself and Brady in relation to Salm was in September 2013 by an email exchange in which she stated on 6 September 2013:
"Hi Derek
Thanks for your call yesterday in regard to Narda and her possible return to work Term 4 ‑ we are aware you currently don't have a trained RRTWC at your school due to the absence of Phil Guy.
If you are comfortable with the medical information provided to date, a return to work can certainly be accommodated as additional allocation for up to one term ‑ if you feel that the school needs more information about the risks for Narda post her surgery and treatment you can ask to have the attached work capabilities checklist completed in consultation with her treating doctor."
Brady wanted to be sure he had the right information because Salm could be difficult to communicate with and he wanted to be "on the right page for her". As Brady was comfortable with the medical information which had been provided she prepared suitable documentation. Rigby did not always specifically get the medical information at hand and relied on the school and the return to work co‑ordinator and/or principal to manage the program.
The decision makers in relation to the progression of a graduated return to work plan always relied on the medical advice and in this case it was Brady as principal who had to decide if this proposed plan was reasonable. Rigby only provided advice and in her role could not tell a school principal what to do.
In response to Salm lodging an application for WorkCover she prepared a document [Exhibit 22] for the purposes of providing information to WorkCover. Rigby relied upon emails and electronic documentation in compiling the material. Rigby recorded the information in chronological order to assist the person making the response to WorkCover with the time period being from 5 September 2013 through to 5 March 2014. Rigby recalled a conversation with Brady on 20 February 2014 where he expressed concerns about Salm not progressing, with there being a significant gap between her job and what she was doing now and he was seeking guidance around how to have a conversation to work on unfolding the role to lead to eventually delivering individual lessons. He was concerned about being in the second term and not progressing. The perfect rehabilitation plan would if it was to run a term, go from group work at the beginning to managing full classes for five days a week or the maximum number they can get to by the end of that term, with that being a general goal.
Rigby gave evidence of it not being her role to monitor the handling of the graduated return to work programs and whilst on occasion may check in with the co‑ordinator she did not do that in Salm's case. Brady contacted her on 24 February 2014 to inform her of his conversation with Salm which had gone well and she seemed happy with the outcome of the meeting and the plan going forward was going to be great. Rigby suggested if it was appropriate for her to visit the school to see how much progress Salm was making. Later that day Salm phoned Rigby indicating the plan was not being followed as the doctor had suggested at which time Rigby advised that "we" would be concerned if she was unable to start doing her inherent role of teaching and "we would be very concerned if someone after a term and a bit of rehabilitation, wasn't able to do their inherent role", there would be concerns for their wellbeing. The question arose that if someone was not well enough to head towards their inherent job, were they well enough to be at work right now. Salm advised she would be having a conversation later that day with her doctor and Rigby suggested she talk to Brady after that conversation.
On the matter of finding once a return to work for a non‑work‑related injury had gone beyond two terms, Rigby along with the principal and the return to work co‑ordinator would look at the medical advice and start communicating directly with the medical practitioner to see whether there was a recommendation that additional funding was required beyond two terms. If the medical advice was the rehabilitation plan may need to go on for another year they would have to question whether it was reasonable or whether the person was well enough to return to work.
Rigby's first conversation with Salm had been on 24 February 2014 and was said by Rigby to be unusual for a worker on a graduated return to work program managed by the school to contact her. It became evident later the contact had been made because Rigby had been the nominated return to work co‑ordinator.
Under cross‑examination Rigby confirmed the goal of rehabilitation was to return a person to their original role within the time frame of one term if possible [Transcript p. 2‑62]. Brady had informed her at the onset he wanted to manage Salm's return to work program because she was his staff member and she had a challenging communication style. Brady provided no further detail around the communication issue [Transcript p. 2‑63]. Rigby offered to help but the offer was rejected by Brady [Transcript p. 2‑63]. There was no previous history of any contact with Brady and all she knew about him was "he's the principal of a school" [Transcript p. 2‑65]. Rigby conceded she would have advised Brady to make sure all discussions with Salm were recorded as that was part of the procedure and a requirement of the return to work co‑ordinator [Transcript p. 2‑65]. It could well have been a situation where Brady asked her to be involved but at this time he was happy to manage it himself [Transcript p. 2‑65]. Because someone had a difficult communication style, Brady as a school principal would still be able to manage the return to work program [Transcript p. 2‑66].
In questions around her second case note (3 December 2013) Rigby conceded she made some recommendations to Brady as to the future management of the return to work plan identifying her concerns about Salm's post‑surgery and that Brady should understand the medical reasons for the restrictions [Transcript p. 2‑67]. It was important for the school to have meetings with the person to identify with the worker the duties they were required to perform in line with their job description [Transcript p. 2‑68]. Rigby had definitely been contacted by Brady on 20 February 2014 with concerns about how long the graduated return to work program was taking and concerns for Salm's wellbeing [Transcript p. 2‑69]. He indicated she had failed to demonstrate the inherent nature of her job and sought some consultancy around how to facilitate a conversation on progress [Transcript p. 2‑70]. Advice was given in terms of what to say to Salm in relation to the end of term [Transcript p. 2‑70]. Rigby in a conversation with Dr Stowell on 25 February 2014 apologised for not contacting him as requested which had occurred as a result of her not understanding it was a request to the Department [Transcript p. 2‑70].
In re‑examination it was Rigby's evidence that if a graduated return to work co‑ordinator was wholly and solely following the injured workers treating doctor's recommendations and plan that has an effect on how that part of the return to work policy should be applied. If in these circumstances there was not an initial interview the employee would not be disadvantaged. In the discussion with Salm on 24 February 2014 she understood that the return to work plan complained of by her had only stopped being followed from that morning.
Maddock
Maddock an Administration Officer (AO2) currently employed at Shailer Park State School having previously worked at the Mt Gravatt State School where she at times acted as an AO3 when the business manager was on long service leave. Her general duties included:
· office duties;
· front counter;
· dealing with parents, students, teachers and visitors; and
· administration work.
Whilst at the school she had some contact with Salm both in person and on the phone with the interactions being purely professional.
In September 2013 Brady gave instruction to her to type details into a graduated return to work document which she complied with and over a period of time completed four such documents all under instruction from Brady alone. The four agreements were all completed quite separately. In the period September 2013 to February 2014 Salm had never spoken to her about graduated return to work issues.
Regulator
Salm
Salm, currently unemployed, had previously been employed as a teacher with Education Queensland commencing in 2001. Salm commenced at the Mt Gravatt Sate School in 2008 working under Brady as the school principal. In the period prior to 2013 as part of her professional development arrangements were entered into that allowed for her to work at Griffith University whilst retaining her five day a week teaching position. On the days when she was absent from the school Leivesley would teach her class and whilst they were never in the same classroom together they organised their classroom activities conjointly.
In 2013 Salm underwent two surgeries with the last operation being towards the end of August 2013. There was an agreement that she would return to teaching following her recovery on a graduated return to work plan which prior to the return to work was never shown to her or explained. Salm had no understanding of what the plan entailed nor what would have been required of her under the plan and of what assistance might be provided to her to help with the return to work. The understanding she formed was the requirement to follow the medical advice and be instructed by Brady in terms of suitable duties. Prior to her return to work in October 2013 there was a telephone call from Brady in September 2013 where he advised that she would be returning to the learning support area and she could take all the time she needed. He indicated there had been a lot of changes at the school during her absence and provided reassurance he would be providing her with support. The medical procedure in August 2013 was "quite a small one in comparison" being the final restructure.
At the time of her return to work she had taken up her social activities again and was looking forward to returning to school with her colleagues and participating in a range of activities. Salm on returning to school had some physical restrictions that may have impacted upon her ability to perform her teacher duties. These were:
· unable to raise her arms above her head;
· unable to twist;
· unable to squat onto low chairs; and
· tired easily.
On 16 October 2013 she attended for work in the learning support area and upon that attendance was at no time advised by Brady about how the return to work plan would be implemented, supervised or duties she would be performing. Prior to the recommencement of her employment Dr Van Maanen had sent correspondence to Brady (dated 1 October 2013) in which she stated:
"I am in agreement with the return to work program which has been discussed with Narda and yourself and detailed in a 3 page graduated return to work program. This will start on October 16".
Salm had seen the return to work program at the time of Dr Van Maanen's correspondence being forward to Brady.
Salm attended Dr Stowell on 7 November 2013 who revised her return to work, noting she was not to work with difficult children and the timeframes were extended from a 16 week plan to a 24 week plan. Brady accommodated the extended plan basically telling other teachers she was not required to look after those children. Salm at no time had any further discussions with Brady in 2013 on how the graduated return to work plan was proceeding as he was a "busy manager" and "often on the run".
On her return for the first semester in 2014 Brady instructed Leivesley and herself (on the pupil free day) that they would be working together in the grade 4 classroom with her understanding she would continue to do two days per week in a transition back to that classroom. Salm had not previously worked with Leivesley in a co‑operative role. Salm believed Leivesley's role was to assist her and became overwhelmed and confused when she found Leivesley wanted to work autonomously giving the impression Salm was encroaching on her classroom rather than being there as a support.
At an impromptu meeting (on 5 February 2014) with Brady she told him that the arrangement did not seem to be working out, there were no clear boundaries and no clear distinction of roles. Brady undertook to talk to Leivesley about her concerns and he also provided her with a work capabilities form instructing her to raise it with her doctor. On her return to work the following week there were no further discussions with Brady.
Brady telephoned her at home on 24 February 2014 where he told her to "get up to speed" and proposed an outline where between that point and the end of term she was to increase working independently in the classroom as he wanted to relocate the other teacher in the classroom elsewhere. He said the change in plan related to the budget and as they were already on a plan he did not need to change. The situation was said to be out of his control with the decision coming from up the line. Salm raised that his actions were inconsistent with the plan agreed on with her doctor with Brady suggesting if she could not meet the goal she should perhaps consider part‑time work.
Salm felt bullied and made it clear she was not in agreeance with his proposal which was absent of any other options. At the end of the discussion she was far from happy and as she was feeling confused decided to seek some clarity from Rigby whom she thought was her return to work co‑ordinator. Rigby advised her she was not the return to work co‑ordinator as the principal had that role and as she had not seen her file it was not her responsibility to talk to the doctors.
After both phone calls she had a panic attack, something she had never experienced previously and made arrangements to see a doctor who after the consultation issued a workers' compensation medical certificate. There was then a discussion with Brady in which she said very little and she denied having made the comment "this is not personal".
Under cross‑examination Salm confirmed that Brady was the principal when she started at school and that she had a positive professional working relationship with him and they got on well [Transcript p. 3‑17]. She denied that on her return to work she had weekly discussions with Brady and that he would check‑in to make sure the program was working alright [Transcript p. 3‑17]. Salm recalled a telephone conversation with Brady in September/October 2013 prior to returning to work where he informed her of changes at the school and she would be working in the learning support area. The terms of the discussion were later reflected in Dr Van Maanen's return to work plan [Transcript pp. 3‑18 to 3‑19]. Salm was happy with the return to work plan and was happy to recommence work in accordance with that plan as it was appropriate to follow the doctor's advice [Transcript p. 3‑19]. The document contained no reference to not working with difficult children and the issue of difficult children was raised by Dr Stowell on 7 November 2013 and reacted too positively by Brady [Transcript p. 3‑20].
In 2011 Salm as part of her professional development performed work at Griffith University with the arrangement approved by Brady who allowed her to retain her role as a full time teacher. Brady had also supported her involvement in a mindfulness, relaxation and meditation program delivered in the classroom both of which were conceded by Salm as examples of the positive relationship she had with Brady [Transcript p. 5‑7]. Salm recalled that Brady had acted with sensitivity and maintained confidentiality in respect of her condition in 2013 and he had spoken to her and her husband by telephone on about three occasions during her absence from school in 2013 [Transcript p. 5‑9]. The conversation with Brady prior to her return to work had been professional and she was looking forward to returning to work and seeing her students [Transcript p. 5‑10]. Salm was reluctant to accept that the work capabilities checklist had been implemented fully between 7 November 2013 and 24 February 2014 giving evidence she had been instructed by Leivesley to undertake lifting beyond the three kilogram limit but on explaining her situation to Leivesley who had no authority to direct Salm, the lift did not occur [Transcript p. 5‑13].
In the telephone conversation with Brady on 24 February 2014 it was agreed the discussion related to the period 24 February 2014 to 4 April 2014 and the notes taken by Brady [Exhibit 14] reflected the details for the term ahead but Salm denied the discussion went to working with certain people as mentioned in the document noting also she had never seen the document [Transcript p. 5‑14]. Salm acknowledged that prior to February 2014 she had assisted year 2 students with their reading in a classroom situation but the timetable suggested in the material had not been sighted by her and there was no clear program. At all times the duties performed by her were at the principal's discretion and she followed instructions [Transcript p. 5‑16]. Salm refuted claims that Brady had detailed what was to happen in weeks 5, 6 and 7 in term 1 2014 but gave evidence of an acceleration of her return to work beyond the written word of her plan was foreshadowed by Brady due to funds not being available to support the existing plan. Salm said she had made it clear to Brady the changes would take her beyond the duty and tasks recommended by the doctor and was even more concerned by his comments that QSuper funds would be affected if she failed to comply [Transcript p. 5‑18]. Salm rejected her recollection of the phone conversation was not accurate going on to make the point the call was made to her home [Transcript p. 5‑20]. Salm also rejected the conversation was about providing support or her health needs but maximising staff funds and resources [Transcript p. 5‑21]. Brady was her manager at work and his actions in the course of the phone conversation did not come across as the actions of a return to work co‑ordinator [Transcript p. 5‑23].
Salm's evidence continued to dispute aspects of the telephone conversation with Brady on 24 February 2014 indicating there was no agreement reached between them nor was there any "doctor consultation" [Transcript p. 5‑24]. Brady had expectations of her taking a whole class by the end of the third last week of term and according to Salm he had not suggested other teachers would be available to support her [Transcript p. 5‑25]. Salm agreed that Brady had not told her to not consult her doctor or that he would not consider the doctor's recommendations [Transcript p. 5‑26] although she had no recall of Brady mentioning she should contact her general practitioner at the end of the conversation [Transcript p. 5‑27]. The proposal raised by Brady did not alter the step up in days per week or the number of hours Salm had been scheduled to work under the existing plan [Transcript p. 5‑28]. There was no requirement to lift above her waist but there was no guarantee about working with difficult children, particularly if she was in a classroom by herself [Transcript p. 5‑28]. Part of the conversation was that Brady was proposing to make some changes to the type of work she was doing [Transcript p. 5‑34]. Salm did recall Brady having told her of being advised by a senior consultant from the rehabilitation section that funding was usually only for one term and there would be no funds available after that [Transcript p. 5‑35]. Salm said these comments were confirmed in her phone conversation with the senior consultant [Transcript p. 5‑35]. Salm had felt pressured to take up 0.5 of a teaching position which was Brady's suggestion and had not come from her [Transcript p. 5‑36].
On her initial return from illness she was looking forward to resuming her previous role and after 14 weeks back gave evidence she would have welcomed some very detailed support but it had been unclear all the way along. It was her belief that the proposals put by Brady had been "a manager with a manager's hat on instructing me very clearly" [Transcript p. 5‑37]. There was a very clear line, being if you disagree with this take it up the line with Brady referencing he was doing as instructed [Transcript p. 5‑37]. At the time she was very unclear who her return to work co‑ordinator was and unclear about the changes being proposed not seeing the conversations as a consultative process [Transcript p. 5‑38]. Salm maintained that Brady had put her under pressure in the course of the phone call about the QSuper funding arrangement, change to return to work plan and being compelled to accept the changes [Transcript pp. 5‑39 to 5‑41]. There was also pressure of having to change to a part‑time position if she could not come up to speed by the end of the term [Transcript p. 5‑43]. Salm acknowledged there may have been personal support from Brady but professional/managerial support was different when it relates to duties and tasks. Salm did not believe there was support for her [Transcript p. 5‑43]. Salm refused to accept she had misunderstood what Brady was about on 24 February 2014 [Transcript p. 5‑45].
On the matter of depression in May 2013 and the prescription of Cipramil by Dr Van Maanen there had been discussions about Salm feeling anxious about pain and once she got through the expansion and the pain there was no anxiety. Salm had not mentioned the issue with Brady for the reason it was her doctor's responsibility to provide that information as it was in the case of continuing to be prescribed Cipramil in 2013/2014 [Transcript pp. 5‑45 to 5‑46]. Salm had no recall of ever mentioning to Brady about having anxiety after her surgery [Transcript p. 5‑47]. Salm did not accept the correspondence from Dr Stowell (dated 7 February 2014) arose from him having concluded she had not coped with her return to work [Transcript p. 5‑49]. The application for workers' compensation had not been made until after her doctor had contacted Education Queensland to attempt consultation but was left unsatisfied, advising her to make a claim for compensation [Transcript p. 5‑50].
At her consultation with Dr Reid in May 2013 Salm had not informed her about having been diagnosed with depression as she was unaware such a diagnosis had been made [Transcript p. 5‑65]. Salm claimed to have taken Cipramil for what she saw as anxiety but accepts there was depression arising from the diagnosis of breast cancer. She also had failed to mention to Dr Reid that she had been prescribed Cipramil and was taking the medication [Transcript p. 5‑65]. On the consultation with Dr Reid she was unable to recall whether she had told her about the diagnosis of depression and the use of Cipramil which she accepted was an omission [Transcript p. 5‑70] later recanting her position by stating "I don't accept it was an omission deliberately or intent ‑ with intent" [Transcript p. 5‑71]. Salm refused to accept her failure to disclose the diagnosis and medication to Dr Reid was because she thought it more likely Dr Reid would conclude it was the breast cancer that had caused her condition [Transcript p. 5‑73]. On her attendance with Dr Warlow she was honest and shared as a layperson all information she thought was relevant [Transcript p. 5‑74]. Salm did not recall telling him about her depression and the Cipramil [Transcript p. 5‑76].
In re‑examination Salm understood she had been prescribed Cipramil due to having difficulty sleeping and due to the painful nature of having injections into her breasts, as well as being anxious and disturbed about the treatment. With regards to having felt pressured by Brady it was about the QSuper funding and having to do 0.5 of a position if she could not do full‑time duties by the end of term. Also being pushed outside the doctor's recommendation as to her duties.
Dr Reid
Dr Reid a Clinical Psychologist saw Salm following receipt of a medical certificate from Dr Stowell and a request from Salm to attend her practice. On 6 April 2014 Dr Reid in response to a request for an initial clinical report provided correspondence to WorkCover Queensland noting in the first instance:
"Please note that this letter is from the perspective of the treating psychologist and therefore should not be considered as an independent medico‑legal assessment."
The report indicated Salm had first attended the practice on 7 March 2014 at which time she reported experiencing low mood, tearfulness, feeling overwhelmed, frequent worry and physical anxiety symptoms since her return to work in October 2013. Salm provided details relating to having been diagnosed with breast cancer in January 2013 and subsequent medical treatment.
Dr Reid based on the initial clinical interview opined Salm's symptoms were consistent with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Acute (309.28). It was not considered by Dr Reid to be an aggravation of a pre‑existing condition with her symptoms appearing to have been precipitated and perpetuated by events specific to the management of the gradual return to work process.
In relation to whether Salm's previous conditions, breast cancer and right shoulder injury (which were very significant) conditions had contributed to Salm's psychiatric condition Dr Reid provided the following opinion:
"In my opinion, Mrs Salm's previous conditions have not contributed to her work‑related psychiatric condition. I believe that the major significant stressor that has contributed to Mrs Salm's diagnosis is the lack of support and lack of appropriate management of the gradual return to work program, and feeling blamed for not being able to do the tasks given to her by the principal despite these tasks not complying with the restrictions outlined by Dr Stowell."
In a second report (dated 23 September 2014) Dr Reid reaffirmed her previous diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood Acute (309.28) relating the causative nature of the condition to events specific to the management of the gradual return to work process.
Dr Reid gave evidence that having previous depression does not exclude somebody from having an adjustment disorder in the future and it was possible to have a depressive illness at one point and then have an adjustment disorder later on that was unrelated because the adjustment condition related to a specific psychosocial stressor and a depressive episode could be related to previous adverse life circumstances, biological and psychosocial factors. Dr Reid had been informed by Salm of the breast cancer history but it was her evidence that not everybody who has breast cancer ends up with depression.
Under cross‑examination Dr Reid conceded that there was a distinct disadvantage in seeing Salm after the event as compared to the psychologist who had seen her previously although after she had written her first report she had contact with the previous psychologist who verified Salm had not met the criteria for diagnosis at the time [Transcript p. 3‑31]. Dr Reid when taken to Salm's medical records for the period 26 March 2013 to 15 May 2013 accepted the entries revealed symptoms of depression [Transcript p. 3‑32]. In the time period 27 June 2013 to 21 January 2014 Dr Reid indicated Salm had reported experiencing distress but not a diagnosed mental health condition [Transcript p. 3‑34]. Distress is not a diagnosed mental health condition with Dr Reid revealing Salm had told her she had experienced distress between May 2013 and December 2013 but did not inform of meeting the criteria for diagnosis [Transcript p. 3‑34].
Dr Reid did not accept the failure to accurately relay a patient's mental health condition history limited her ability to treat her accurately as it depends whether the information is relevant to the current condition. Dr Reid needed to have the relevant history for Salm's current condition in order to provide appropriate professional care [Transcript p. 3‑36]. If Salm had a major depressive order from May 2013 until Dr Reid had commenced treating her, depending upon events it was possible it could have been the most significant factor in respect of her April 2014 problem depending on the order of events and symptomatology over that period [Transcript p. 3‑37].
If the return to work had been managed wholly consistent with the medical practitioners recommendation Dr Reid would not have expected an aggravation of Salm's mental health [Transcript p. 3‑38]. A number of scenarios were put to Dr Reid regarding the return to work and the impact on Salm's mental health conditions drawing from Dr Reid a level of support for the propositions and some less supportive answers [Transcript p. 3‑39]. Dr Reid was not sure she had ever gotten a completely accurate history involving absolutely everything from a patient but conceded if a direct question was asked it would be expected that any such conditions in the previous twelve months would be disclosed [Transcript p. 3‑40].
In re‑examination Dr Reid's evidence was that the reported information from Salm was consistent over time and consistent with the observations and information from the other psychologist. There was no reason to doubt Salm's honesty and frankness. An inspection of Salm's medical records in May 2013 did not "actually say major depressive disorder". The fact that Salm may have been taking Cipramil did not affect the treatment Dr Reid provided to her. Dr Reid gave evidence that changes in the expectations around the return to work between 7 and 20 to 24 February 2014 may have caused an aggravation of a pre‑existing condition.
Dr Stowell
Dr Stowell a general practitioner since 1978 first treated Salm on 7 November 2013 at which time she was engaged in a return to work program following surgery. A colleague (Dr Van Maanen) had made notes on 1 October 2013 regarding the return to work and Salm expressed concerns to him regarding the return happening too quickly and about the need to avoid lifting and contact with kids that may be a bit feisty. Salm had an involvement with a "violent kid" on her return which had put her in conflict with medical advice to avoid physical contact. Dr Stowell following the consultation prepared correspondence that was forwarded to Brady which informed Salm was having difficulty coping and the return to work should be significantly slower by extending the time jumps. There was also a need for Brady to avoid placing Salm with children who were demonstrating violent behaviour. He flagged her vulnerability at the time and requested co‑operation with the return to work program.
A further consultation occurred on 21 January 2014 where he recorded in the notes there were no difficulties and they were leaving her alone. At the time he renewed her prescription for hypertension medication whilst holding the view the return to work should continue at a slower rate than the original three week steps. Salm next saw him on 31 January 2014 where in the notes he recorded she was emotionally a basket case and whilst the "boss" and the deputy principal were lovely she was having problems settling in with the other teacher due to her not liking co‑operative teaching. Salm was quite teary and distressed at the time. The next consultation was on 7 February 2014 where his notes recorded advice that the rehabilitation co‑ordinator (Rigby) had made no contact with her for "2+ months" and she was experiencing problems with bursitis tendinopathy. Suggestions regarding the management of the return to work plan did not result in any communication from the school.
On 24 February 2014 Salm again attended Dr Stowell where he recorded in the medical notes that she was suffering more stress from work, was shaky and tearful and they had "pressed my [her] buttons". Dr Stowell further recorded:
"This is a confused and overcomplicated situation with Narda in the middle being pressured by Principal and Snt Injury Consult from the costing point of view not any consideration for her illness or RTW."
In making the above observation it was clear that she needed time, longer than usual following difficulties with surgery and a post‑operative complication with her shoulder. There just needed consideration to be given to providing her some space and to stop picking on her. Dr Stowell issued a workers' compensation medical certificate which contained the diagnosis "RTWork related stress problems" and the stated cause of injury being "inability of school officers and injury consultant to conform to RTW plan as provided".
Under cross‑examination Dr Stowell gave evidence regarding the measures he recommended on 7 November 2013 as being appropriate at the time and trusted those recommendations would have been taken on board at the time [Transcript p. 3‑52]. On the work capabilities checklist [Exhibit 12] completed by Dr Stowell on 7 February 2014 he completed the document without consulting Brady or Rigby and not having visited the school [Transcript p. 3‑53]. Dr Stowell's first contact with Rigby was on 25 February 2014 when she returned his telephone call where he indicated to her he did not see a need to be involved in the WorkCover matter as he had done everything that was necessary to help slow down the return to work process to make it less stressful [Transcript p. 3‑54].
When he recorded Salm having said to him on 24 February 2014 they had "pressed her buttons" he was certain that was her perception and it was the case that whilst many patients with anxiety and depression have sensitivities it does not mean their perceptions are necessarily inaccurate [Transcript p. 3‑55]. Dr Stowell conceded as Salm's general practitioner he was advocating for her on the basis of what she had told him [Transcript p. 3‑56]. Dr Stowell despite certain propositions put to him regarding Salm's return to work said he would not have changed his opinion because of certain facts emerging at the end of February 2014 as the process had been going on for a couple of months already [Transcript p. 3‑57]. Dr Stowell accepted the return to work plan prepared by Dr Van Maanen was reasonable and when he made changes on 7 November 2013 to the plan and they were accepted without question by the school which was reasonable as well [Transcript p. 3‑59]. He also accepted the school had acted appropriately in Salm's interests by taking into account his work capabilities assessment [Transcript p. 3‑60].
In re‑examination Dr Stowell explained that as a general practitioner it was his role to define medical issues whether they be psychological, physical, spiritual whatever and assist the patient to recover. Salm had clearly some difficulties with mood resulting in her being put on Cipramil but by the time he saw her Salm she was feeling that the anti‑depressant therapy had actually done its job. By the end of the term things had stressed her significantly leading to her being kept on the anti‑depressant.
Dr Warlow
Dr Warlow a psychiatrist examined Salm at the request of WorkCover providing a report (dated 7 October 2014). Dr Warlow acknowledged a "valid point" having been made by Dr Varghese that he had not emphasised the impact of Salm's breast cancer however the criticism would not lead him to change the findings in the report. Salm, in his opinion, had a lot of support during the breast cancer but that was not what she was feeling in the school setting although largely speaking she had spoken highly of the deputy principal and her boss. In terms of Dr Varghese's expressed view that Salm was far from ready to return to the workplace he held a different view on the basis of Salm having stated she was looking forward to starting back and was both positive and excited at the prospect.
Dr Warlow in his report recorded that whilst Salm had initially denied any psychiatric past history she did at the end of the interview respond in a non‑defensive way that she had seen a psychologist in 2012 on six occasions following a school fire and had taken a week off on WorkCover having suffered symptoms of anxiety and possible traumatic stress.
On the material provided to Dr Warlow there had been a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood and in his Independent Medical Examination and Report he provided the reasons he considered causative of Salm's current total incapacity as follows:
"This is a very appropriate question in view of what seemed to be a small issue resulting in such a big apparent injury. Nevertheless I have tried to emphasise the circular causality between her own experience of the school and her own psychological issues (in the context of medical and psychological collateral information). Thus overall I do consider that the reason is her experience of a return to work programme in the school setting, subsequent to her breast operation.
It was also noted, that she had had previous psychological issues in 2006 (not significant) and in 2013, when she commenced the Cipramil. However, despite this, I do consider that she would not have had this problem if the return to work programme had been addressed as endorsed by her general practitioner and psychologist. Also, if she had not had the Cipramil in 2013, I don't think the problems outlined in this report would have been significantly different."
Under cross‑examination Dr Warlow acknowledged in accessing Salm's general practitioner's notes he may have missed some entries regarding her depression and medication but that would not change his opinion [Transcript pp. 3‑65 to 3‑66]. He had noted in his report that Salm had been prescribed medication in the form of Citalopram and accepted that twenty milligrams a day was a clinical dose [Transcript p. 3‑66]. Whilst there had initially been no mention by Salm of some degree of psychological contact, as was evident in the materials, once he had opened it up to her "she was very open about that and there wasn't a sense of intentionally hiding that" [Transcript p. 3‑67]. In essence Dr Warlow felt he had got a reasonable history of her psychiatric past both distant and recent [Transcript p. 3‑68]. Dr Warlow was taken to Salm's medical records covering the period 26 March 2013 to 24 February 2014 which identified numerous entries relating to:
· physical and emotional point of view;
· psychological referral;
· moods fluctuating;
· stressed with daughter;
· Cipramil ‑ nausea;
· mental health plan;
· diagnosed as depressed in post‑op period; and
· shaking, tearful.
Dr Warlow's finding based on both the information from the general practitioners and from Salm was that he did not consider she was initially depressed, she was quite well and looking forward to coming back to school. Although he suspected she may have been a "bit anxious" about returning to work at the beginning of 2014 [Transcript p. 3‑73].
At the time of her return to work in term 4 of 2013 if she had been in a depression she was largely in remission and that she remained on Cipramil it did not mean she had a current Major Depression. His understanding was on her return to work she was not depressed [Transcript p. 3‑73]. Dr Warlow accepted that Salm's treating general practitioner would have been better placed than he was twelve months later to assess her state of depression was a valid point and it was recommended (by the general practitioner) that she was okay with her going back to work [Transcript p. 3‑74]. During his examination of Salm he did not get the sense she was seeking to hide things [Transcript p. 3‑75]. At the time of the interview he was aware of Salm having been on Cipramil as of May 2013 and apologised for not including that information in his report [Transcript p. 3‑76].
Dr Warlow conceded there was some merit in the proposition that it followed inexorably that the depression was caused or precipitated by the sequelae and everything associated with the breast cancer and surgery, however the general practitioner later in the year appeared to be considering her coming off the anti‑depressant and was okay with her going back to work. Remaining on Cipramil did not mean she remained depressed as anti‑depressants are given to keep someone in remission. Anti‑depressants were not like an antibiotic. The dosage of 20 milligrams a day was quite a moderate dose [Transcript p. 3‑77]. He believed the decision to keep her on the anti‑depressant by the general practitioner was a reasonable clinical judgement. Dr Varghese in his report had used the words "it seems to me" in opining the most likely precipitant of Salm's condition of Major Depression was the salient adverse event of the diagnosis of breast cancer with the subsequent adversity. Dr Warlow evidenced that Salm had not reported psychological de‑compensation until after she commenced the return to work [Transcript p. 3‑79]. A number of scenarios were put to Dr Warlow regarding Salm's return to work and comments sought from him [Transcript pp. 3‑79 to 3‑86].
In re‑examination Dr Warlow reaffirmed his evidence of being aware Salm was on anti‑depressants in May 2013 and that remaining on anti‑depressants does not mean a person continues to be depressed. The interview with Salm required Dr Warlow to provide some gentle containment to be able to move from one subject to another as she was in a very emotive and anxious way. Salm had been very open enabling him to get all the information he needed which aligned with the material he had at hand.
Dr Van Maanen
Dr Van Maanen a general practitioner of 30 years standing confirmed the content of a File Note which recorded a conference she participated in or around October 2015 [Exhibit 30]. Dr Van Maanen had provided a history of treating Salm which included:
· patient since 2006;
· 26 March 2013 ‑ treatment of Salm post‑surgery for breast cancer where she had suffered pain and low mood consistent with having recently undergone mastectomy. The treatment provided to Salm was described as being "fairly typical";
· 2 May 2013 ‑ Salm's moods fluctuated ‑ very stressed with her daughter ‑ Dr Van Maanen considered support with an antidepressant which Salm was happy to trial. Salm's reaction was quite within the bounds of being usual;
· 20 mgs Cipramil prescribed which was a basic starting dose with it being usual to remain on the medication for a minimum of six months;
· treatment related to "depression after breast cancer surgery" so as to not label Salm as a lady who was going to be depressed for the rest of her life;
· 15 May 2013 ‑ still not good ‑ crying at the weekend;
· 27 June 2013 ‑ noticed uplift in Salm's voice ‑ busy ‑ no issues with mood;
· eating healthy ‑ showed significant improvement ‑ depressed people mostly do not care about food;
· busy active ‑ any depression had been treated;
· 3 September 2013 ‑ considered Salm was ready to return to work for one day a week in accordance with recommendations made by the school principal;
· 1 October 2013 ‑ report of vivid dreams ‑ not surprising as having undergone last surgery three weeks previous ‑ Salm still considered able to return to work one day a week with lifting restrictions;
· Brady agreed to work plan commencing on 16 October 2013;
· temporary depression resolved ‑ "will try off Cipramil at the end of the term"; and
· Dr Van Maanen would not have been content to support return to work duties that required dealing with children with special needs or behavioural issues.
Under cross‑examination Dr Van Maanen when asked whether Salm had previous episodes of depression in the period 2006 to 2013 replied "she had reported stress. There was stressful situations that had happened in her life, as it does to all of us" [Transcript p. 5‑56]. If a patient had suffered depression in the past, that would be information she would prefer to have as a treating practitioner [Transcript p. 5‑56] but would not necessarily expect a patient to volunteer such information nor could she recall whether she expressly asked Salm about previous issues [Transcript p. 5‑57]. Twenty milligrams of Cipramil was described as a clinical and effective dose [Transcript p. 5‑58]. With regards to her evidence about Salm engaging in Pilates and eating well it was conceded that was consistent with Cipramil beginning to work [Transcript p. 5‑59]. Dr Van Maanen elected to keep Salm on Cipramil to maintain the control and the positive effect of the medication [Transcript p. 5‑60]. Dr Van Maanen had not provided treatment to Salm between 1 October 2013 and the end of February 2014 [Transcript p. 5‑61]. Dr Van Maanen agreed with the proposition that the natural history of depression is episodic and that Cipramil being a restricted prescription may only be prescribed for Major Depression [Transcript p. 5‑62].
In re‑examination the evidence was that there was no hard and fast rule that Cipramil be prescribed for six months with that period generally being the minimum. A convenient time to wean off an antidepressant would be at the start of a holiday period.
Submissions
Appellant
The Appellant provided substantial written submissions (44 pages) under the following headings:
· Introduction
· Issues for determination
· Legal principles
· The evidence
· The hearing of the appeal
· The facts
· Chronology
· The injury did not arise out of or in the course of employment
· The employment was not the major significant contributing factor to the injury
· The management action taken by the Appellant was reasonable management action taken in a reasonable way
· Any injury suffered by Salm arose out of or in the course of her expectation or perception of reasonable management action being taken against her
· Salm was not a credible or reliable witness
· Conclusion and orders sought.
As mentioned previously in the decision, whilst all of the submission content has been considered in its entirety the intention is to précis the document highlighting certain points and facts.
Issues for determination
Issues for determination were listed as:
· Did Salm sustain an injury arising out of, or in the course of her employment?
· If Salm sustained a psychiatric or psychological disorder ‑ was her employment the major significant contributing factor to the injury?
· If Salm sustained an injury within the meaning of the Act did that injury arise out of, or in the course of, reasonable management action taken in a reasonable way?
· If Salm sustained an injury within the meaning of the Act did that injury arise out of, or in the course of, her expectation or perception of reasonable management action being taken against her?
· Should the Commission allow the Appeal and set aside the decision of the Regulator?
· If the Appeal is allowed should the Respondent be ordered to pay the Appellant's costs of and incidental to the Appeal?
Witnesses
Appellant witnesses were:
· Brady ‑ Principal at Mt Gravatt State School;
· Rigby ‑ Senior Injury Management Consultant;
· Maddock ‑ Administration Officer at Mt Gravatt State School; and
· Dr Varghese ‑ Consultant Psychiatrist ‑ practised since 1978.
Regulator witnesses were:
· Salm ‑ Claimant Worker;
· Dr Reid ‑ Psychologist ‑ practised since 2013;
· Dr Stowell ‑ General Practitioner since 1978 ‑ relevantly treated Salm from November 2013 to February 2014;
· Dr Warlow ‑ Psychiatrist ‑ practised since 1990;
[185]On Dr Stowell's support for Salm's condition being as a result of management action that was not reasonable as he had relied on what Salm had told him and as her general practitioner it was his role to be his patient's advocate. The Appellant's treatment of Salm was generous, concerned and supportive, being wholly consonant with legitimate and stated goals of the return to work program. It was reasonable management action reasonably taken.
[186]On the Regulator's reliance on Dr Reid, the Psychologist, it was understandable because it was an implicit acknowledgement that the Commission would prefer the evidence of Dr Varghese to that of Dr Warlow. The insurmountable obstacle in placing any material reliance on Dr Reid's evidence is that it was based entirely on a false premise being Salm had no previous psychiatric illness. Salm was responsible for this by her non-disclosure to Dr Reid which renders Dr Reid's evidence as unreliable.
[187]The contention that Salm was facing "the impending cessation of benefits" was wrong as there was no such thing and no recommendations had been made in this respect. Some very modest and encouraging proposals were discussed with Salm and her reaction to them which Dr Stowell simply adopted bore no relation to the reality.
[188]On the authority of Q‑COMP v Foote (No. 2)[15] it was not an authority for the proposition contended by the Regulator. The Act as s 32(5)(b) operates to remove the alleged injury from the definition of s 32 of the Act such that the alleged injury is not a compensatable injury.
[15] Q‑COMP v Foote (No. 2) (2008) 189 QGIG 802
[189]The Appellant presses the Appeal and its application for the relief sought.
Conclusion
[190]It was not of contest that Salm for the purposes of s 11 of the Act at all relevant times was a "worker" entitled to lodge an application for workers' compensation.
[191]The matters for determination are as follows:
· Did Salm sustain a personal injury in the form of a psychiatric/psychological injury within the meaning of the Act?
· If such an injury was sustained did it arise out of or in the course of her employment?
· Was the employment the major significant contributing factor to the injury?
· Whether the operation of s 32(5)(a) of the Act excludes the personal injury (if sustained) from compensation on the basis that the injury arose out of reasonable management action taken in a reasonable way by the Appellant in connection with her employment; or
· Whether the operation of s 32(5)(b) of the Act excludes the personal injury (if sustained) from compensation by Salm's expectation or perception of reasonable management action being taken against her.
Personal Injury
[192]The determination around whether Salm sustained a personal injury pursuant to s 32(1) of the Act is in the scheme of things very much influenced by the medical evidence adduced in the proceedings. Evidence relevant to this issue was given in the proceedings by the following witnesses with medical expertise:
· Dr Varghese ‑ Consultant Psychiatrist;
· Dr Reid ‑ Clinical Psychologist;
· Dr Stowell ‑ General Practitioner; and
· Dr Warlow ‑ Psychiatrist.
[193]Dr Varghese conducted a psychiatric evaluation of Salm in June 2015 and concluded she was suffering from Major Depression at the time, likely to have commenced in early 2013. He questioned her readiness to recommence work in October 2013 following breast cancer and shoulder surgery in addition to ongoing emotional difficulties from her depressive illness.
[194]Dr Varghese expressed the view that Major Depression was multi‑faceted and that previous episodes of depression delivered a constitutional predisposition whether in relation to adverse events or independent of those events. Issues associated with the return to work program may have aggravated an already depressive condition with Salm's medical history having revealed a previous episode of depression.
In response to the specific question of whether Salm had a psychological or psychiatric injury as at the date of her application for workers' compensation (24 February 2014) Dr Varghese recorded:
"It seems to me that in February 2014 Ms Salm was in a state of Major Depression."
[196]Dr Reid in her initial clinical report to WorkCover on 6 April 2014 made it clear as Salm's treating psychologist her assessment should be seen from that perspective and not as a report from an independent medico‑legal person. At the initial consultation with Salm on 7 March 2014 she opined her symptoms were consistent with the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, Acute (309.28) and not considered by Dr Reid to be an aggravation of a pre‑existing condition.
[197]In the course of cross‑examination Dr Reid's evidence was whilst Salm's medical records for the period 27 June 2013 to 21 January 2014 indicated she had reported distress, it was the case "distress" was not a diagnosed mental health condition.
[198]Dr Stowell's first consultation with Salm occurred on 7 November 2013 and in correspondence (dated the same date) raised with Brady concerns regarding Salm having difficulties coping with extra work required in stage two of the return to work program suggesting an extension of each stage by a further three weeks, in effect flagging her vulnerability at the time. Prior to 24 February 2014 he saw Salm on two occasions where he noted there were there were issues with hypertension and her emotional stability. On 24 February 2014 he issued a workers' compensation medical certificate diagnosing Salm as having "RTWork related stress problem".
[199]Dr Warlow conducted an interview with Salm on 7 October 2014 at the request of WorkCover and in a report (dated the same date) made the following diagnosis:
"Major Depressive Disorder of 'moderate severity of approximately 10 months duration, with some lessening of the severity from February through to around June and over the last couple of weeks or so (her being off work for about one month). The Depression was also associated with marked anxiety. Panic Attacks."
[200]I am satisfied the medical evidence before the proceedings supports a finding that Salm suffered a personal injury within the meaning of s 32 of the Act in the form of a psychiatric/psychological disorder.
Did the personal injury arise out of or in the course of Salm's employment?
[201]In determining this aspect of the Appeal it is not of contention that in early 2013 Salm underwent a number of surgeries in relation to breast cancer and a shoulder condition that concluded with an operation of a more minor nature towards the end of August 2013. In or around May 2013 the treating general practitioner Dr Van Maanen after discussions with Salm regarding her becoming anxious and disturbed about the ongoing treatment following the breast cancer operation prescribed the medication Cipramil in the form of a 20 mgs dosage which the doctor described as "a basic starting dose with it being usual to remain on medication for a minimum of six months". Dr Van Maanen evidenced the treatment related to "depression after breast cancer surgery" and the treatment was not going to label her as "a lady who would be depressed for the rest of her life". On 27 June 2013 she noticed an uplift in Salm's voice, no issues with mood and significant improvement. At a further consultation on 3 September 2013 the doctor considered Salm was ready to return to work by way of a graduated return, a position that was confirmed at a consultation on 1 October 2013 where Dr Van Maanen believed there were indicators that any depressive condition which may have been suffered by her was temporary and had resolved by this time.
[202]Dr Varghese gave evidence of Salm suffering Major Depression likely to have commenced in early 2013 and the cause of her Major Depression was multi‑faceted for reasons such as:
· previous episode of depression in;
· constitutional predisposition to depression whether in relation to adverse life events or independent of that; and
· the likely salient adverse event of being diagnosed with breast cancer and subsequent complex surgical procedures.
The principle cause of her Major Depression was said to be the diagnosis of cancer, surgical procedures and complications from surgery but he left open the question that the Major Depression had been aggravated by punitive issues in respect of the return to work. On the dosage of Citalopram (20 mgs) prescribed by the general practitioner it was his evidence that the dosage was lower than a psychiatrist would prescribe and accepted in cross‑examination that if the depression had been ongoing he would have expected the dosage to have increased.
[203]Dr Reid's opinion with regards to Salm's previous conditions was that they had not contributed to the work‑related psychiatric condition and that by having previous depression did not exclude somebody from having an adjustment disorder in the future that was unrelated because the adjustment disorder related to a specific psychosocial stressor and a depressive episode could be related to previous life circumstances, biological and psychosocial. Dr Reid held the view that changes in the expectations around the return to work between 7 and 24 February 2014 may have caused an aggravation of a pre‑existing condition. Not everyone however who had breast cancer ends up with depression.
Dr Stowell the treating general practitioner for the period 7 November 2013 through to and including 24 February 2014 issued a workers' compensation medical certificate (dated 24 February 2014) in which he diagnosed return to work problems as the relevant diagnosis for the compensation claim acknowledging in cross‑examination he had relied upon information provided to him from Salm.
Dr Warlow held a different view from that of Dr Varghese regarding her readiness to return to work in October 2013 based on Salm having informed him she was looking forward to starting back and was positive about that prospect. Whilst at the initial stage of his interview with Salm she had not mentioned any psychiatric past history she did however at the end of the interview make certain disclosures about having seen a psychologist on six occasions in 2012 following a school fire and having a week off work due to symptoms of anxiety and possible traumatic stress.
[206]Dr Warlow considered the causative reasons for Salm's condition was "her experience of a return to work programme in the school setting, subsequent to her breast operation". He accepted that her treating general practitioner would have been better placed than he was 12 months later to assess her state of depression at the time of returning to work. Dr Warlow evidenced the decision by the general practitioner to keep Salm on a moderate dosage of Cipramil was reasonable clinical judgement and remaining on the medication did not mean she had remained depressed as anti‑depressants are given to keep someone in remission, unlike antibiotics.
[207]Salm's evidence was that following a "small" medical procedure in August 2013 there was agreement that following her recovery she would return to work on a graduated plan without an understanding of what the plan entailed except that there would be a requirement to follow medical advice. At the time of her return to work on 16 October 2013 she had taken up social activities (again) and was looking forward to returning to school with her colleagues and participating in a range of activities. There were a number of issues following her return to work which necessitated a revised return to work plan which extended the timeframes from 16 weeks to 24 weeks. Upon her return to work for the first semester in 2014 she informed Brady at an impromptu meeting (on 5 February 2014) that the current arrangements were not working out, with the situation becoming progressively worse in the following weeks which led to her having panic attacks not previously experienced by her. A consultation with her general practitioner led to the issuing of a workers' compensation medical certificate on 24 February 2014.
[208]The evidence is of a nature for a conclusion to be reached that on 16 October 2013 following a period of sick leave due to medical procedures relating to breast cancer and a shoulder condition, Salm had been cleared to return to work on a graduated work plan by Dr Van Maanen her (then) treating general practitioner who had formed that view with the full knowledge of her medical circumstances. Dr Van Maanen was fully appraised that Salm had been prescribed anti‑depressant medication in May 2013 having prescribed the medication and would continue to take the medication post her return to the workplace not believing this would inhibit her participation in the return to work program. Salm despite experiencing some difficulties initially with the return to work plan completed the final semester of the 2013 school year without any obvious impact upon her mental health. On her return to work in January 2014 there were a number of events subsequent that led to her de‑compensation and the issuing of workers' compensation medical certificate by Dr Stowell on 24 February 2014 identifying the stated cause of injury as being work‑related.
[209]I am satisfied the personal injury sustained by Salm arose out of or in the course of her employment.
Was the employment the major significant contributing factor to the injury?
[210]At s 32(1)(b) of the Act it states:
"for a psychiatric or psychological disorder ‑ the employment is the major significant contributing factor to the injury".
[211]Dr Varghese conducted a psychiatric evaluation of Salm around one year and nine months beyond the workplace events that were said to have led to her de‑compensation. In the course of that evaluation he found amongst other things:
· her Major Depression was likely to have been the salient adverse event of being diagnosed with breast cancer and subsequent complex surgical procedures;
· the cause of depression was multi‑facetted and there was a constitutional pre‑disposition to depression whether in relation to adverse life events or independent of that;
· if Salm's account of the issues with the return to work program were accepted then she may well have aggravated the already depressive disorder; and
· whilst a finding of fact by the Commission may cause him to change his opinion he was inclined to view her difficulties with the return to work as a result of ongoing depressive symptoms that arose from her breast cancer.
Dr Reid who first consulted with Salm shortly after her de‑compensation in February 2014 opined:
"In my opinion, Mrs Salm's previous conditions have not contributed to her work‑related psychiatric condition. I believe that the major significant stressor that has contributed to Mrs Salm's diagnosis is the lack of support and lack of appropriate management of the gradual return to work program, and feeling blamed for not being able to do the tasks given to her by the principal despite these tasks not complying with the restrictions outlined by Dr Stowell."
[213]Dr Stowell, the issuer of the workers' compensation medical certificate diagnosed Salm at the time of de‑compensation as suffering work‑related stress problems with the stated cause of injury being "inability of school officers and injury consultant to conform to RTW plan as provided".
[214]Dr Warlow made a finding based on information from Salm and the general practitioners that at the time of her return to work on 16 October 2013 she was not depressed, in fact was quite well and looking forward to returning to the school. On the issue of Salm having been prescribed anti‑depressant medication in May 2013 and remaining on those anti‑depressants it did not mean that a person continued to be depressed. Overall he considered the causative nature of Salm's incapacity at the time of writing his report (7 October 2014) was "her experience of a return to work programme in the school setting, subsequent to her breast operation".
[215]In cases such as this the medical practitioners are in some respects guided by the history provided at varying times by the claimant who in this case appears to have provided a consistent account of work events said to be causative of her condition. In the case of her interaction with Dr Warlow it is acknowledged there was a reluctance to provide details of her past history but she later "came good" at the back end of that process and in his view had not been "intentionally hiding" that information.
[216]The medical and other evidence before the proceedings overall supports a finding that Salm's employment was the major significant contributing factor to her psychiatric/psychological disorder and whilst Salm had suffered an episode of depression in the immediate aftermath of the breast cancer medical procedures it has not been satisfactorily established there was a causal link between that and the disorder subject of the workers' compensation claim.
Whether the operation of s 32 of the Act excludes Salm's personal injury from compensation on the basis of reasonable management action taken in a reasonable way in connection with her employment
Return to work plan
Salm was medically cleared to return to work on 16 October 2013 by Dr Van Maanen who acknowledged her agreement with the return to work program discussed with Salm and Brady. The return to work program set out four stages for the return which included a graduated plan in attendance at school as follows:
Stage one: 16 October 2013 to 1 November 2013
One day per weekStage two: 2 November 2013 to 23 November 2013
Two days per weekStage three: 24 November 2013 to 28 January 2014
Three days per weekStage four: 28 January 2014 to 14 February 2014
Three days per week (with full class).
[218]The agreement identified the payment structure to apply which included:
· continuation reduced QSuper income protection payments in conjunction with Education Queensland resuming payments for work day; and
· continuous sick leave without pay.
[219]Salm's employment circumstances were listed as being at the time of the diagnosis with her illness:
· 0.8 of a permanent full‑time teaching position.
[220]Salm's supervisor was identified as Brady with the rehabilitation and return to work co‑ordinator "to be determined".
[221]A range of restrictions regarding her capacity were set out that included:
· maximum lift 5 kg;
· unable to do playground duties and sports;
· 10 minute breaks every two hours (tires easily);
· limited work on blackboards; and
· no repetitive bending.
[222]Dr Stowell on 7 November 2013 forwarded correspondence to Brady in which he made reference to the original return to work plan and of Salm having difficulty with the extra work required in Stage two of the program. Dr Stowell suggested an extension of each stage by a further three weeks and also drew attention to issues regarding threatening behaviour. Brady agreed to the extension based on discussions with Salm and Dr Stowell's request with a further return to work program being produced to reflect the changes.
[223]On 7 February 2014 Dr Stowell completed a Work Capabilities Checklist which again identified issues regarding Salm's ongoing limitations which resulted in a further graduated return to work program.
[224]In all there were four graduated return to work agreements all of which identified Rigby as the Rehabilitation and Return to Work Co‑ordinator and Brady as the Supervisor. The four agreements tendered in the proceedings bore the signature of Brady as the supervisor but had not been signed by Rigby in her designated role. The Agreements covered the following periods:
· Agreement one: 16 October 2013 to 27 November 2013 (signed 9 October 2013);
· Agreement two: 7 November 2013 to 13 December 2013 (signed 15 November 2013);
· Agreement three: 27 January 2014 to 8 April 2014 (signed 8 January 2014); and
· Agreement four: 27 January 2014 to 8 April 2014 (signed 10 February 2014).
[225]It is not of dispute that Brady had accepted all the proposed changes by Salm's treating medical practitioner and reflected those changes in formal return to work agreements which must be regarded as positive in terms of Salm's participation in the return to work. Unfortunately the fact that the designated rehabilitation and return to work co‑ordinator (Rigby) had no direct participation in the return to work abrogating that responsibility to Brady whose role had clearly been defined as Salm's return to work supervisor made it impossible for Salm to raise with her supervisor any concerns she may have had with the return to work program or co‑ordinator as they were "one in the same".
[226]Another obvious flaw with Salm's return to work was that Brady failed to schedule specific meetings with Salm to discuss her progress preferring to have discussions with her "on the run" when their paths crossed in the day‑to‑day operations of the school. Brady kept no formal record of the exchanges with Salm and in evidence stated he would raise matters with her such as:
· How is it all today?
· Are you feeling okay?
· Are you happy with the programme?
· Who are you working with today and which children?
· About her relaxation classes.
· About life changing experiences.
All exchanges were according to Brady concluded by him saying:
"My final line would always be remember, Nada, this is your plan. I can't tell you what to do. I'm not inside you."
[227]From the return to work by Salm in October 2013 until the telephone call to her from Brady on 24 February 2014 the evidence points to Brady being quite liberal in his responses to the graduated return to work program extensions and Salm undoubtedly felt that time was not her enemy in the process.
[228]Whilst Rigby had not had a "hands on" role in Salm's return to work in respect of any engagement with Salm, there was evidence of her providing advice and support to Brady along the way. Rigby's role according to her evidence included:
"…liaison responsibilities with the return to work co‑ordinator, school principal and injured worker".
This evidence clearly identifies the return to work co‑ordinator and school principal as separate entities. The Department of Education and Training Policy and Procedure Register ‑ Workplace Rehabilitation ‑ Version Number 4.2 ‑ Implementation Date 6 August 2013 contained the following information regarding the Maintain at Work and Return to Work Programs:
"All maintain at work and return to work programs are to be formulated in consultation with the injured employee, their treating medical practitioners, the Rehabilitation and Return to Work Coordinator and the employee's supervisor."
[229]Rigby seldom case managed individuals as there were trained rehabilitation staff in the schools, although in this case that person had been seconded to another school at the time of Salm's return. In an email to Brady on 6 September 2013 she made the following statement:
"Thanks for your call yesterday in regard to Narda and her possible return to work Term 4 ‑ we are aware you currently don't have a trained RRTWC at your school due to the absence of Phil Guy.
If you are comfortable with the medical information provided to date, a return to work can certainly be accommodated as additional allocation for up to one term ‑ if you feel that the school needs more information about the risks for Narda post her surgery and treatment you can ask to have the attached work capabilities checklist completed in consultation with her treating doctor."
[230]Rigby's advice as early as September 2013 identified the accommodation of an "additional allocation for up to one term" of which Brady would have been fully aware yet there is no evidence of Brady informing Salm at the time of granting extensions to the length of the return to work program of Rigby's advice on this issue. Rigby evidenced that the parameters for the approval of additional funding required a review of the worker's progression by the return to work co‑ordinator.
[231]According to Rigby the decision makers in relation to the progression of the return to work plan always relied on the medical advice and in this case it was Brady as the principal who had to decide what was reasonable as she was not in a position to tell a school principal what to do. On 20 February 2014 she recalled a conversation with Brady who expressed concerns about the failure of Salm to progress in a satisfactory way. Rigby's first contact with Salm occurred on 24 February 2014 when Salm made contact as a result of her being the nominated return to work co‑ordinator.
[232]I am satisfied that the conduct of Salm's graduated return to work program was not necessarily compliant with accepted good practice particularly in the case of Brady who as Salm's principal and supervisor had additionally assumed the important role as her return to work co‑ordinator bringing with it a conflict of interest in the two roles that did not serve the situation well.
24 February 2014
In the period between the commencement of the 2014 school year and 24 February 2014, on the evidence of Salm alone it is evident she was experiencing some difficulty with the transition back to classroom duties, in particular her interactions with another teacher (Leivesley) and had sought Brady's assistance, where he had undertaken to engage with Leivesley about the situation. Brady in his evidence was unable to recall the exact date of this conversation with Salm but acknowledged the flavour of the conversation by recalling Salm's words as being:
"Derek, it's awkward in the classroom because I feel that maybe my presence in that room is making this younger teacher feel insecure because I'm a senior teacher."
I am satisfied Salm had issues regarding her transition to classroom teaching in early February 2014 and raised those issues with Brady.
[234]The Commission was provided with very different versions of the telephone conversation between Brady and Salm on 24 February 2014 with the only common ground being that:
· Brady had instigated the phone call; and
· Salm was on a day off.
Brady's Version
[235]Prior to calling Salm he had contacted Rigby to seek advice about contacting Salm and the possible need to apply for additional funding.
[236]On 24 February 2014 according to Brady he telephoned Salm and whilst on the phone to her produced a planning document for the term ahead which had Salm reducing her employment capacity to 0.5 which he saw as a "great fit" and reflected an agreed position between them. The conversation which was some 15 to 20 minutes in duration concluded with Salm stating:
"I'm happy with this, Derek. I'm looking forward to working with Michelle (Leivesley)".
[237]In the course of cross‑examination he testified in regards to the 24 February 2014 conversation that:
· it was Salm who advanced the proposition of the 0.5 part‑time position;
· Salm accepted in term two she would be working four days a week;
· Brady denied telling her she would have to come up to speed; and
· Brady did not accept she was upset at the end of the conversation.
Salm's Version
[238]Salm's recall of the 24 February 2014 conversation was that Brady telephoned her at home at which time he told her to "get up to speed" and proposed an outline for the period between then and the end of term which would have her increasing her independent work in the classrooms. The outline reflected a change in plan that Brady advised related to the budget and that the decision had come from up the line and was out of his control. When she raised that his actions were inconsistent with the agreed plan Brady suggested if she was not able to meet the goals then perhaps she should consider part‑time work.
[239]Salm felt bullied and made it clear she did not agree with Brady's proposal and at the end of the discussion was far from happy. On that basis she made contact with Rigby whom she thought was her return to work co‑ordinator however was informed by Rigby she did not hold that role, had not seen her file nor was it her responsibility to talk to the medical practitioners.
[240]After both the 24 February 2014 telephone calls she had a panic attack unlike anything previously experienced and made arrangements to see a doctor, who following the consultation issued a workers' compensation medical certificate.
[241]In cross‑examination regarding the 24 February 2014 conversation with Brady it was Salm's evidence that:
· she did not recall being advised that a senior consultant from the rehabilitation area had said there would be no funds available after one term;
· Brady's approach was more as her work manager rather than that of a return to work co‑ordinator;
· denied any knowledge of a discussion about the people mentioned in Brady's planning document;
· was concerned about Brady's references to her QSuper funding; and
· conversation was about maximising staff funds and resources.
[242]Salm had navigated the return to work period of late 2013 with some difficulties that were overcome by time extensions to her various return to work plans which were approved as a matter of course by Brady without any inkling of dissatisfaction or expressed concerns by him. The 2014 school year commenced with Brady providing similar agreement to a proposition put by Dr Stowell on 7 February 2014.
[243]The decomposition of Salm did not occur as a consequence of the questionable return to work arrangements where Brady as her supervisor and also return to work co‑ordinator managed that program but as a direct result of the telephone conversation with Brady on 24 February 2014.
[244]I accept the version offered by Salm in terms of the conduct of the 24 February 2014 telephone conversation and the approach from Brady was significantly different from his previous modus operandi in that his attitude to her return to work progress was to act harshly for the first time with Salm being told she had to "get up to speed" and it was likely her funding for the return to work would cease, leaving her in a vulnerable position. Further exacerbating the situation was the proposed reduction in her employment status to a 0.5 position something not previously part of any discussions regarding her return to work. The content of the discussion was in complete contrast to the manner in which Brady had dealt with her to that point.
[245]In accepting Salm's version I note that her evidence is supported by her actions immediately following the end of the 24 February 2014 telephone call where for the first time in the return to work program she initiated contact with Rigby to express her concerns about what had occurred with Brady which was followed up by her attendance upon her general practitioner and the issuing of the workers' compensation medical certificate.
[246]Brady's version had Salm happy with the outcome proposed which included an agreed reduction in her employment status which is at complete odds with how Salm reacted immediately following the end of the telephone call.
Rigby's Evidence
[247]Rigby recalled a conversation with Brady on 20 February 2014 where he had expressed concerns that Salm was not satisfactorily progressing and sought guidance about how to have a conversation with Salm on matters leading to her delivering individual lessons. Brady had contacted her again on 24 February 2014 and informed her that the conversation with Salm had gone well and she seemed happy with the outcome of the meeting. Later in the day she received a telephone call from Salm in which she advised Rigby that the return to work plan was not being followed pursuant to medical advice.
[248]I do not accept the dramatic changes to Salm's return to work plan and proposed reduction in her employment status, put in a telephone call to Salm on a non‑work day without one "iota" of any previous mention of such a change in the circumstances was reasonable management action taken in a reasonable way and therefore the operation of s 32(5)(a) is not enlivened.
Whether the operation of s 32(5)(b) of the Act excludes the personal injury from compensation by Salm's expectation or perception of reasonable management action being taken against her
[249]Having found Salm's personal injury was not excluded from compensation as a result of the management action that led to her decompensation it is not necessary to address the issues of expectation or perception pursuant to s 32(5)(b) of the Act.
Witness Credibility
[250]There were considerable references contained in both submissions as to the credibility or otherwise of Salm regarding her actions in failing to properly declare both her past mental health issues preceding her breast cancer condition and the fact that following the surgical procedures she had been prescribed the medication Cipramil in May 2013 for depression, continuing to take that medication upon her return to work in October 2013 without informing her employer.
[251]In terms of her past history it is not of contention that Dr Varghese at the time of preparing his report was fully aware of Salm's previous episode of depression in 2006 and that at the time of the return to work she was on anti-depressant medication. Dr Warlow the other Psychiatrist to give evidence in the proceeding also had the benefit of an insight into Salm's past mental health issues in compiling his report noting that while he may have missed some information regarding her medication and depression it would not change the opinion proffered by him.
[252]Whilst accepting there were circumstances whereby Salm could have been more forthcoming about these issues the failure to do so does not in the view of the Commission necessarily reflect directly on her integrity to the point where her credibility is a significant issue as submitted by the Appellant.
[253]In the course of the proceedings I observed Salm to have given evidence in a manner that assisted the Commission in its deliberations albeit at times during cross‑examination she gave the appearance of being measured in terms of some of her responses.
[254]On the critical consideration of the content of the telephone conversation between Brady and herself on 24 February 2014 I have preferred her version to that of Brady's therefore in terms of her credibility reject the submissions of the Appellant that it would in effect be unsafe to rely upon her evidence.
Findings
[255]On consideration of the evidence, material and submissions before the proceedings and relying upon the requisite standard of proof I find the following:
· Salm was at all relevant times a worker pursuant to s 11 of the Act;
· Salm sustained a personal injury in the form of a psychiatric/psychological disorder;
· the personal injury sustained by Salm arose out of, or in the course of her employment and the employment was the major significant contributing factor to the injury; and
· Salm's personal injury is not excluded from being compensatable by the operation of s 32(5)(a) of the Act.
Orders
[256]The following Orders are made:
· the Appeal is rejected;
· the decision of the Workers' Compensation Regulator of 30 March 2015 to confirm Salm's application for compensation is upheld;
· the Appellant is to meet the Regulator's costs of and incidental to this Appeal. Should the parties be unable to reach agreement on the matter of costs a further application should be made to the Commission.
[257] I order accordingly.
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