Workers' Compensation Regulator v Carr

Case [2023] ICQ 1

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Workers' Compensation Regulator v Carr [2023] ICQ 001

PARTIES:

Workers' Compensation Regulator
(Appellant)

v

Carr, Donna Noreen
(Respondent)

CASE NO.:

 C/2022/7

PROCEEDING:

 Appeal

DELIVERED ON:

 10 January 2023

HEARING DATE: 

1 July 2022

MEMBER:

 Merrell DP
HEARD AT:

Brisbane

ORDERS:

Pursuant to s 562(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

(a)      the decision of the Queensland Industrial Relations Commission in Matter No. WC/2021/4 is set aside; and

(b)      another decision is substituted, namely, that the review decision of the Appellant is confirmed and that the Respondent pays the Appellant's costs of the hearing before the Queensland Industrial Relations Commission as agreed or assessed.
CATCHWORDS:

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - APPEAL TO INDUSTRIAL COURT - Respondent appealed to the Queensland Industrial Relations Commission against a review decision of the Appellant which confirmed a decision of WorkCover Queensland not to accept the Respondent's application for workers' compensation for a psychological injury - decision by the Commission that the Respondent's injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the Respondent's employer in connection with the Respondent's employment - Appellant appealed the decision to the Court - whether the Industrial Commissioner determined the Respondent's appeal on the basis of the case advanced by the Respondent as contained in the Respondent's statement of facts and contentions - whether there was evidence upon which the Industrial Commissioner could make the decision that stressors 1 and 2 amounted to unreasonable management action - whether the Industrial Commissioner gave adequate reasons for making the decision that the Respondent's injury did not arise out of reasonable management action taken in a reasonable way by the Respondent's employer - whether the Industrial Commissioner used the wrong test in applying s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 - the Industrial Commissioner determined the Respondent's appeal on a basis not contended by the Respondent - decision vitiated by errors of law - decision set aside - another decision substituted, namely, that the Respondent's application for compensation be rejected and that the Respondent pays the Appellant's costs of the hearing before the Commission

LEGISLATION:

Industrial Relations Act 2016, s 429

Workers' Compensation and Rehabilitation Act 2003, s 32, s 561, s 562 and s 563

CASES:

Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23

Burton v Workers' Compensation Regulator [2022] ICQ 017

Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 001

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Davis v Workers' Compensation Regulator [2020] ICQ 011

Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Lee v Lee & Ors [2019] HCA 28; (2019) 266…

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AGLC
Workers' Compensation Regulator v Carr [2023] ICQ 1
Case
[2023] ICQ 1
Decision Date

CaseChat Overview and Summary

Workers' Compensation Regulator v Carr involved an appeal by the Respondent, Ms Carr, to the Queensland Industrial Relations Commission against a decision by the Appellant, the Workers' Compensation Regulator, not to accept her application for workers' compensation for a psychological injury. The Commission upheld the Regulator's decision, finding that the injury did not arise out of or in the course of reasonable management action taken by Ms Carr's employer. The Regulator then appealed this decision to the Court.

The legal issues before the Court were whether the Industrial Commissioner determined Ms Carr's appeal based on the facts and arguments presented by her, whether there was evidence to support the finding that certain stressors amounted to unreasonable management action, whether the Commissioner gave adequate reasons for his decision, and whether he applied the correct legal test in making his determination. Specifically, the Court examined whether the Commissioner used the correct test in applying section 32(5) of the Workers' Compensation and Rehabilitation Act 2003.

The Court found that the Commissioner had not determined the appeal on the basis of the case advanced by Ms Carr, as he had considered a basis that was not argued by her. Furthermore, the Court concluded that the Commissioner had not provided adequate reasons for his decision and had applied the wrong legal test in his analysis. As a result, the Court determined that the Commissioner's decision was vitiated by errors of law, and it was set aside.

The Court substituted a new decision, confirming the Regulator's review decision and ordering Ms Carr to pay the Regulator's costs of the hearing before the Commission. This outcome effectively rejected Ms Carr's application for workers' compensation and imposed a financial burden on her for the costs associated with the appeal.

Orders

Orders of the court

Pursuant to s 562(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

(a) the decision of the Queensland Industrial Relations Commission in Matter No. WC/2021/4 is set aside; and

(b) another decision is substituted, namely, that the review decision of the Appellant is confirmed and that the Respondent pays the Appellant's costs of the hearing before the Queensland Industrial Relations Commission as agreed or assessed.

Background

Background to the litigation

For the reasons that follow, the decision should be set aside and another decision substituted being that Ms Carr's application for workers' compensation is rejected and that Ms Carr pays the Regulator's costs of the hearing before the Commission.Background Ms Carr and the Regulator filed and served statements of facts and contentions in respect of the proceeding before the Commission. Ms Carr's statement of facts and contentions Because the personal injury suffered by Ms Carr was a psychological injury, she was required to file, with her statement of facts and contentions, a list of stressors. Ms Carr nominated 23 stressors. However, because 14 of those stressors occurred after the date the Industrial Commissioner determined was the date of her injury, being 30 July 2019,[11] the Industrial Commissioner was only required to consider the first eight stressors nominated by her.[12][11] Carr (n 1), [25]-[45]. The Regulator did not challenge the finding made by the Commission that Ms Carr's personal injury occurred on 30 July 2019.[12] There was no dispute that the ninth stressor nominated by Ms Carr was not a matter that could have had a causal connection with her injury. The decision set out the eight stressors, namely:[52] The events contained in the table below are based closely on the relevant sections of the List of Stressors, supplemented in part by the contents of the Appellant's Statement of Facts and Contentions. Those matters will be considered further in this Decision. In respect of stressor 1, the Regulator:·denied that Ms Carr requested an offsite meeting with Mr Errol Cosgrove or Mr Shane Basile to chat about a few things, because it did not occur and, further, that Mr Basile attended the workplace every Tuesday and any meetings or conversations with him could have occurred at that time;[13]·admitted there was a meeting between Ms Carr, Mr Cosgrove and Mr Basile on or about 2 November 2018;·denied Ms Carr raised concerns regarding substandard cash flow, invoicing, financial controls, payroll, taxation and significant staff shortages and related under resourcing in the financial and administrative work units of the business;·denied Ms Carr discussed her relationship with SRV, or the effect the stress of her job was having on her health;·stated that it was Mr Cosgrove who asked questions about cash flow, invoicing, financial controls, payroll and taxation to both Ms Carr and to Mr Basile; and·further stated that Mr Cosgrove organised for Mr Basile to assist Ms Carr in performing her duties.[14][13] The Regulator's statement of facts and contentions filed on 30 April 2021 ('the Regulator's contentions'), para. 5.[14] The Regulator's contentions, para. 6. In respect of stressor 2, the Regulator:·denied there was an offsite meeting on 2 November 2018 for the same reasons given in response to stressor 1;·did not admit that Ms Carr was not coping with her workload;·admitted that the accounting required to be done was not being done by Ms Carr and, as a result, the business was starting to fail through the lack of invoicing, the failure to pay superannuation, payroll tax and other tax obligations, the failure to pay bills and accounts owing, causing credit problems with suppliers, problems with payroll, the failure to manage returnables to suppliers and the failure to manage reconciliations and accounts;·from January 2019 to June 2019, it became apparent there were risks for the business and the way it was operating in that Ms Carr had sole access to accounts, accounting software and bank accounts of the business;·admitted that on or about 1 April 2019, a review of the business was conducted;·denied that Ms Carr's responsibility level was unreasonable along with her workload;

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In respect of stressor 2, the Regulator submitted:·Ms Carr's complaint was:- in respect of the changes that were proposed to be made by Mr Cosgrove and Ms Cosgrove after the start of 2019, that the company used a very manual process involving processing the paperwork, invoicing the load, receiving money for the load which, in turn, then pays wages, expenses and the bills, and they did not understand the process;- they were trying to steamroll her and were trying to push those changes through too quickly;- she had to find a way to try to deal with those changes;- it was obvious she was not keeping up with the cashflow expenses because her co-workers asked her if she was alright; and- she did not have the words to tell a co-worker what was going on;·apart from the above, Ms Carr did not provide any evidence that she had communicated, in any way, to Mr Cosgrove that she was not keeping up or coping with her workload;·Mr Cosgrove completely denied that Ms Carr was not coping with her workload; and·the fact that Mr Cosgrove instituted change was reasonable management action.[22][22] The Regulator's trial submissions, paras. 37-47.The decision In a comprehensive and well-structured decision, the Industrial Commissioner found that:·stressors 1 to 8 each involved management action;[23]·Ms Carr's injury arose out of management action in connection with Ms Carr's employment;[24] and·stressors 3,[25] 4,[26] 5,[27] 6,[28] 7[29] and 8[30] all amounted to reasonable management action taken in a reasonable way in connection with Ms Carr's employment.[23] Carr (n 1) [72].[24] Ibid [73].[25] Ibid [139]-[152].[26] Ibid [153]-[165].[27] Ibid [166]-[190].[28] Ibid [191]-[198].[29] Ibid [199]-[215].[30] Ibid [216]-[231]. In respect of stressor 1, the Industrial Commissioner found that, for the reasons given in paragraphs [91] to [97] of the decision:·the employer's response constituted reasonable management action taken in a reasonable way; and·however, on consideration of the external review, Ms Carr's workload and work intensity over a lengthy period, which lead to Ms Carr raising those matters with SRV, did not constitute reasonable management action taken in a reasonable way.[31] In respect of particulars provided in respect of stressor 2, the Industrial Commissioner found that:·Mr Cosgrove and Ms Cosgrove were being responsive to the matters raised by Ms Carr in the 2 November 2018 meeting and that their actions were reasonable;[32]·Ms Carr's complaint that plans put in place during the offsite meeting on 2 November 2018 were not being followed was not born out on the evidence;[33]·in respect of the conduct of an on-site business review, the failure to provide the report to Ms Carr was not, in itself, unreasonable management action;[34]·it was reasonable management action to recruit additional staff in May and June 2019;[35] and·for the reasons given by the Industrial Commissioner,[36] the workload, work pressure and responsibility on Ms Carr's shoulders over a significant period was not reasonable management action.[37][32] Ibid [103]-[110].[33] Ibid [111]-[116].[34] Carr (n 1) [119].[35] Ibid [135]-[136].[36] Ibid [126]-[134].[37] Ibid [98] and [137].

Ratio Decidendi

Legal Principle Established

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