Weigel v Workers' Compensation Regulator - [2019] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Weigel v Workers' Compensation Regulator [2019] QIRC 162
PARTIES:	Weigel, Kelly-Ann Appellant v Workers' Compensation Regulator Respondent
CASE NO:	WC/2018/136
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	29 October 2019
HEARING DATE:	11 - 12 June 2019
MEMBER: HEARD AT:	Pidgeon IC Brisbane
ORDERS:	1. The Regulator's decision of 28 June 2018 is set aside. 2. The application for compensation made by the Appellant is one for acceptance. 3. The Respondent is to pay the Appellant's costs of, and incidental to, the Appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Whether the Appellant's psychological injury is secondary to an accepted physical injury – questions around multi-factorial causation – whether physical workplace injury and associated pain and stress triggered onset of psychiatric symptoms – nature of psychological injury - was employment the major significant contributing factor to the psychological disorder.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 235 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Ebsworth v Workers' Compensation Regulator [2017] QIRC 028 Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 1 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Lackey v WorkCover Queensland [2000] QIC 43 MacArthur v WorkCover Queensland [2001] QIC 21 Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 1 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10.
APPEARANCES:	Mr A Stobie of Counsel, instructed by McNamara & Associates, for the Appellant. Ms L Willson of Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Ms Weigel (the Appellant) was employed by Mulgowie Farming Company, formerly described as Vitalish Pty Ltd, between September 2015 and June 2016. Up until 12 January 2016 when she was moved off her manual duties, the Appellant was a line worker which meant that she worked in a packing shed undertaking duties involving processing vegetable crops.[1]
[1] T1-3, ll 14-17.
Ms Weigel is a "worker" within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (the WCRA).
While working in this role, the Appellant developed left carpal tunnel syndrome and in January 2016 had a WorkCover claim for this injury accepted.[2]
[2] T1-3, ll 23-24.
On 29 March 2016, the Appellant underwent surgery described as a left carpal tunnel repair.[3]
[3] T1-3, ll 27-28.
On 25 August 2017, the Appellant filed a Notice of Claim for Damages for left carpal tunnel syndrome, secondary psychiatric injury and right carpal tunnel syndrome.
The claim for secondary psychiatric injury and right carpal tunnel syndrome was rejected by WorkCover Queensland on 2 March 2018 and that decision was upheld in a decision of the Regulator dated 28 June 2018.
It is the rejection of the claim for secondary psychiatric injury which is the subject of this appeal.
The Respondent contends that there is no evidence to support that the Appellant sustained an 'injury' within the meaning of s 32(1) of the WCRA. That is, in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Weigel v Workers' Compensation Regulator

Details

AGLC: Weigel v Workers' Compensation Regulator [2019] QIRC 162
Case: [2019] QIRC 162
Decision Date: 29 October 2019

CaseChat Overview and Summary

The parties involved in this appeal are the Appellant, Weigel, and the Workers' Compensation Regulator, the Respondent. The central issue in this case revolves around the Appellant's claim for workers' compensation, specifically concerning whether her psychological injury is secondary to an accepted physical injury. The Appellant contends that her psychiatric disorder was triggered by her physical workplace injury and the associated pain and stress. This case was heard in the Queensland Civil and Administrative Tribunal (QCAT), an authority competent to hear workers' compensation appeals in Queensland.

The legal issues before the tribunal included the determination of whether the Appellant's psychiatric injury was a result of her physical workplace injury and associated pain and stress, or if there were other contributing factors. The tribunal also needed to assess the nature of the psychological injury and whether her employment was the major significant contributing factor to the disorder. The tribunal examined the evidence presented by both parties and assessed the Appellant's credibility and the medical evidence provided.

The tribunal concluded that the Appellant's psychological injury was secondary to her accepted physical injury, and that her employment was the major significant contributing factor to the psychological disorder. The tribunal found that the Appellant's psychiatric symptoms began in October 2015, shortly after she commenced her work for Mulgowie Farming Company. The tribunal accepted that the Appellant's repetitive work tasks and the physical injury she suffered at work triggered her psychiatric symptoms. The tribunal also found that the Appellant's psychiatric injury was severe and that she was unable to work due to her symptoms. Based on these findings, the tribunal set aside the Regulator's decision and accepted the Appellant's application for compensation.

The tribunal ordered that the Regulator's decision of 28 June 2018 be set aside, and that the Appellant's application for compensation be accepted. Additionally, the tribunal ordered that the Respondent pay the Appellant's costs of, and incidental to, the appeal. The tribunal's decision was based on the evidence presented and the legal principles applicable to workers' compensation claims in Queensland.

Orders

Orders of the court

1. The Regulator's decision of 28 June 2018 is set aside.

2. The application for compensation made by the Appellant is one for acceptance.

3. The Respondent is to pay the Appellant's costs of, and incidental to, the Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent's Outline of Submissions raises questions regarding the existence of medical evidence of the psychiatric injury occurring at either the period of October 2015 to January 2016 or beyond this and these questions were explored at the hearing. Appellant's Evidence-in-Chief The Appellant commenced work for Mulgowie Farming Company in September 2015 having previously worked for that company for six months in 2009. The Appellant described her general attitude to work as positive and stated, "I love work, I'm a workaholic".[13][13] T1-5, ll 30-32. She described the tasks she was undertaking as repetitive preparation of vegetables to eat and said that this involved getting the vegetables from the tonne bin, putting about 15-25 kilos of produce in a container to carry to the table and then taking the heads off broccoli and cauliflower all day in the one position. The Appellant described her hours of work as 25-35 hours a week working days of eight or ten hours. She said at the end of October, early November 2015 she began to experience pins and needles in both hands. When asked for how much of the day the symptoms were affecting her, she answered:As soon as I'd wake up. I couldn't hold a cup of coffee because my hands would cramp. And then, warming up through the day it would ease, but then I'd be at work by then, so then they'd come back severely. By the end of the shift I couldn't feel my hands.[14][14] T1-6, ll 35-38. When asked to describe the symptoms she was experiencing in her left hand and wrist, the Appellant said:Pins and needles through the middle and ring finger, shooting up into my thumb and wrist and it ended up in my elbow, as well. Stabbing, throbbing.[15][15] T1-6, ll 40-44. The Appellant stated that the symptoms began in October 2015 and became more severe. She said that she had similar pins and needles and throbbing on the right-hand side but that it wasn't as bad as the left. The Appellant explained that she went and saw her doctor in November and that she couldn't get in for the ultrasound on her wrist until January 2016, so she continued to work until then and was diagnosed with carpal tunnel in January 2016 when her employer moved her into the office as they had no light duties in the shed. In the office role, the Appellant said that she continued to experience pain and that she underwent surgery on the left hand in March 2016. The Appellant said that she only underwent the surgery on the left hand as it was approved by WorkCover. The Appellant says that she knew straight after the surgery that "it wasn't right",[16] and that after the surgery, the wrist was sore and painful and worse than it had been prior to surgery.[16] T1-7, ll 39,40. The Appellant stated that the day after the surgery, she commenced hand therapy and that the hand therapy continued for roughly eight months. She said that the pain in her left hand meant that it was difficult to chop, she wasn't able to cook for herself and she didn't see any point in putting herself through pain to cook and that as a result, she suffered severe weight loss.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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