Calder v Simon Blackwood

Groos v WorkCover Queensland [2000] QIC 52; (2000) 165 QGIG 106

Mercer v ANZ Banking Group (2000) 28 NSWLR 740

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; [2006] 1 Qd R 519

Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 181

Q-COMP v Green (2008) 189 QGIG 747

Q-COMP v Rowe [2009] QIC 17; (2009) 191 QGIG 67

University of Tasmania v Cane [1994] TASSC 73; (1994) 4 Tas R 156

Mr J. Wiltshire, instructed by Shine Lawyers, for the appellant.

Mr S. McLeod for the respondent, directly instructed.

[1] On 17 September 2011, the appellant lodged an application for compensation for post-traumatic stress disorder ("PTSD") arising "from an exposure (contact with AIDS client saliva in my Right eye.)"

[2] On 26 October 2011 WorkCover Queensland advised the appellant that it did not accept her application for compensation as it had "deemed that reasonable management action was taken, based on section 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (the Act)". The appellant applied for review on

25 January 2012 and, by decision of 8 March 2012, the respondent confirmed the WorkCover's decision.

[3] Pursuant to s 550 of the Act the appellant appeals the decision of the respondent to reject her claim for compensation for a psychiatric illness arising out of or in the course of her employment.

[4] The appellant was employed by The Corporation of the Diocese of Brisbane ("Spiritus") as a level one registered clinical nurse from August 2009, and was promoted to a level two registered nurse from November 2009.

[5] It was not in issue between the parties that the appellant was a "worker" within the meaning of the Act.

[6] The appellant's case is that the primary cause of her injury was the exposure event on 2 June 2011 and the appellant's subsequent fear that she would contract HIV/AIDS and die. It was further submitted that, whilst the appellant experienced management action as being far from satisfactory, and that was a factor in causing and maintaining her injury, it was comparatively less significant than the exposure incident and subsequent anxiety about her health, such that the injury cannot be said to have arisen out of the management action. Further, to the extent that management action was relevant, it was not reasonable or taken in a reasonable way.[1]

[7] Section 32 of the Act relevantly provides:

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

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

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker;

(c) action by the Authority or an insurer in connection with the worker's application for compensation."

[8] On 2 June 2011 the appellant was conducting a performance review on Ms Sherrie Bowler, a personal care worker ("PCW"), at an AIDS patient's home. After the PCW showered the AIDS patient, the PCW requested the appellant change the patient's dressings as they had become detached. With the assistance of the PCW, the appellant proceeded to clean the wound and change the dressing on the patient's thigh. The appellant was kneeling beside the patient and he was standing to permit the bandage to be secured around the back of his leg. The appellant told the Commission that the patient turned around and, as the appellant commenced to stand, she felt wetness in her right eye. The appellant said:

"I knew instantly that I'd gotten spit in my eye because I just like blinked and went, "Oh, my God", and like in my mind I was going, "Oh, my God", and then I seen him have dribble, like spit, because he'd had a CVA some years before and at times he did dribble."

[9] The appellant said that her immediate reaction when she felt the spittle in her eye was "sickening". She said:

"I just basically just stopped. I - I couldn't even tell anyone what had happened. I just - like it's not like I announced, "Oh, my God, I just got spit in my eye." I went straight to the bathroom and washed my eye out.

All right. How were you feeling at that time? -- Oh, sick, panicked, freaking out."

[10] The appellant immediately washed her eye with water in the bathroom of the patient's home before leaving. Once outside, she telephoned Josie Sproull, the regional co-ordinator for Spiritus. The appellant said:

"I rang Josie and said, "Josie, I've just gotten spit in my eye off the AIDS client", and she said to me, "Have you washed your eye out?" and I said, "Yes, I have." And she said, "Well Nigel's in a meeting at the moment, I need to go and speak to him." And I was like, "Well don't you think I need to get bloods done or something?" and she goes, "Lisa, you're just being paranoid. You're just being paranoid, Lisa." Yeah."

[11] The Commission was told that the appellant went to a nearby chemist to purchase some eye wash and flushed out her eye. She subsequently telephoned Warren Fitzgerald, a registered nurse with "Positive Directions", which is a referral service for patients with HIV. Mr Fitzgerald told the appellant that he would make arrangements with the Miami Sexual Health Clinic for her to obtain prophylactic treatment, blood tests and a risk assessment, and advise Spiritus of what he had done.

[12] The appellant's evidence in relation to her discussion with the Miami Sexual Health Clinic was:

"All right. And what discussion did you have with her? She asked me what had occurred. I told her. She - I remember her asking me, "Do you know what the viral load of the client is?" and I said, "No, does that make a difference?", and she said, "Well, yes. Because we don't see AIDS anymore." Generally people with HIV are medicated and their viral load is low.

All right. What was your understanding of the importance of viral load at that stage? At that stage, all I knew was from what Nigel had told me. When you get a high viral load your CD4 count drops.

All right, and what happens if your CD4 count drops? You - well, you are at risk of an opportunistic infection developing.

[13] The appellant commenced annual leave from 3 to 13 June 2011. During her period of leave the appellant ruminated about the exposure incident and her fear that she may contract HIV and die. In her evidence-in-chief she was asked what she did over the period that she had off:

"I stayed at home, I cried, I worried myself sick, I relived the event over and over in my mind, I thought I was dying, I went on the Internet, I'm looking up - constantly looking up HIV and saliva, what's the likelihood - like, just trying to look up as much information as I could.

All right. And did that reassure you? How did you feel about that? No. It just - the more I looked, the more I realised how little myself as a nurse knew about a person that had a diagnosis of AIDS.

All right. So you said you were crying. How often were you doing that? Oh, all the time. It was like a part of me inside had died. I just - I cried randomly. I just didn't want to see anyone - yeah. It was horrible.

All right. Well, what was it that you were concerned about? That I was going to get HIV and die."

[14] The appellant saw her general practitioner, Dr Gassner, on 28 June 2011. In his clinical notes he records:

"V stressed as exposed to patient with full blown clinical aids after refusing meds got saliva in eye went Miami Clinic had all bloods will go back in Sept current tests all clear SMS."[2]

[15] Contrary to the submission of the respondent, I accept that Dr Gassner's notation relates to the exposure incident on 2 June 2011 and identifies this event as the cause of her stress.

[16] Counsel for the appellant sought the opinion of Professor Whiteford regarding the symptoms exhibited by the appellant over the period that she was on leave:

"All right. Would you consider those were significant symptoms she was describing there? --- Yes. Stress can be very unpleasant and can cause someone to worry a lot and become preoccupied about what may be going to happen, and I think that's what was going on during that time.

All right. And what's the relevance of the description that she was crying frequently? --- I think that was her worry that she may have contracted a serious infectious disease."

[17] In the report of Professor Whiteford dated 8 October 2012 he concluded that the appellant "did suffer a personal injury in relation to the work related incident on 2 June 2011."[3] He went on to opine:

"2. Lisa Calder developed an adjustment disorder with anxiety. There were some features of post-traumatic stress disorder at that time however I do not believe she ever met the full American Psychiatric Association's Diagnostic and Statistical Manual, Fourth Edition (DSVM IV) diagnostic criteria for post-traumatic stress disorder.

3. The adjustment disorder did arise in the course of Ms Calder's employment.

4. I believe the incident on 2 June 2011 was a significant contributing factor to the onset of the adjustment disorder. Her GP records indicate Ms Calder had adjustment disorder symptoms on 8 June 2011 and that these symptoms were related to the exposure. By 19 July 2011 the possibility of post-traumatic stress disorder was being raised."[4]

[18] In Groos v WorkCover Queensland, Hall P held:

"It may be conceded that each of the two psychiatrists, Dr Chalk, who had been called by WorkCover Queensland, and Dr Mulholland, who had been called by the appellant, declined to diagnose the appellant as suffering from a psychiatric disorder or a psychological injury. One can understand why. The appellant did not reach the threshold on the diagnostic standard, DSM 4, used by those who practice as specialist psychiatrists. However, that is not the end of the matter. There is clear evidence by Dr Mulholland, who unlike Dr Chalk did not consider it unnecessary to go beyond the DSM 4, that the appellant was suffering "emotional problems" and that his disorder was probably "best regarded as a non-psychopathological dysphoric reaction to bio-psychosocial stress which is all readily understandable given the circumstances of his life". The question whether an applicant for compensation has suffered an "injury" within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive. If the legislature had wished to confine relief to cases in which a condition answered the criteria of DSM 4, the legislature might have said so. By way of example, s. 214 of the Workplace Relations Act 1997 (now repealed) provided "If an expression used in this chapter is also used in the Termination of Employment Convention 1982, it has the same meaning as in the convention". It is difficult to accept that a diagnostic standard developed to ensure that psychiatrists from different backgrounds diagnose on the basis of a common international standard is an appropriate mechanism to use in assessing whether a worker suffering impairment arising out of the course of his employment and to which his employment was a significant contributing factor, is entitled to assert entitlement to compensation for the impairment because he has suffered an "injury" within the meaning of the Workers' Compensation Act 1990. One cannot resist adding that the diagnostic standard is in terms about "illness" rather than "injury". Noticing that where an injury is shown, "impairment" as defined at s. 39, is by s. 43 of the Workers' Compensation Regulation 1992 assessed by using the AMA Guide, Dr Mulholland has worked backwards assessing the degree of impairment, noticing the causal nexus with the incident of 14 January 1997, and concluding that the appellant was "injured" by the incident. It may be conceded that that process of reasoning is a process of reasoning which the Act does not require. I note the submission of WorkCover Queensland that the WorkCover Queensland Regulation 1997, s. 55(2) uses the verb "must" in requiring reference to be had to the AMA standard in assessing impairment. It may be conceded that neither in the Workers' Compensation Act 1990 nor in the Workers' Compensation Regulation 1992 is an obligation to be found to use of the AMA standard to determine whether the worker has suffered an injury. Frankly, if the intention had been to impose an obligation to determine the existence of an injury by assessing impairment under the AMA standard I should have expected to find an express provision. But it has not been put that the existence of an injury must be determined in that way. What is put, and put correctly, is that in the case where there is no evidence to the contrary, the existence of the injury may be inferred from the existence of the impairment. In my view the Industrial Magistrate did not err in finding that the appellant had suffered an "injury" within the meaning of the Workers' Compensation Act 1990."[5]

[19] I accept that the appellant suffered an injury within the meaning of s 32(1) of the Act arising out of the exposure incident on 2 June 2011, notwithstanding the fact that she had not by that stage reached the threshold for a DSM 4 diagnosis. In my view, the evidence supports a conclusion that the threshold for a clinical disorder was crossed sometime between 28 June 2011 and 19 July 2011.[6] Professor Whiteford accepts that the appellant suffered from symptoms of psychological distress prior to the point at which she crossed the clinical threshold.[7]

[20] Professor Whiteford expressed the view that the appellant was worried about the possibility of contracting HIV even though that possibility was in fact negligible:

"If the infection that may have been contracted is a serious infection, even if the risk is low, it's not uncommon that people worry about that because the consequences of having contracted that can be very significant ...So the person can be told - they can even be given a percentage and say well, you know, the chances that you've contracted something are, you know, less than 10 per cent, but the focus is on that 10 per cent, not on the 90 per cent chance they haven't contracted anything."

[21] In cross-examination, Professor Whiteford gave the following evidence:

"Now you ultimately conclude that, and correct me if I'm wrong, but her adjustment disorder was caused by management action being the significant contributing factor. You said that on the bottom of page 12 over to page 13? --- Yes. But the management action, that in the exposure and what happened afterwards in the workplace.

Yes. But you don't say that though in your report though, do you. What you say, you've picked up the exact language. And you're well familiar with the test, I suggest to you, under the Workers Compensation legislation, section 32(1). You ultimately conclude, "I do not believe the management action was inconsequential. I think it was a significant contributing factor." So I take it that's what you ultimately consider to be the cause of the adjustment disorder, the lack of management action in dealing with her problem. That's correct, isn't it? --- No. That was a significant contributing factor. One factor, but it was a significant factor."

[22] There may be two or more factors which might each have contributed to the injury. The determination of which of a number of contributing causes is or are significant involves a factual exercise.[8] The evidence of Professor Whiteford is that both the exposure incident on 2 June 2011 and the subsequent management action were both significant factors.

[23] I accept the submission of the appellant that the existence of some reasonable management action in the mix does not, of itself, preclude a psychiatric disorder from the definition of 'injury'.

[24] As was observed by de Jersey P in Croning v Workers' Compensation Board of Queensland:

"There may of course be two or more factors which might each be regarded as "significant" contributors to the development of a condition. The determination of which of a number of contributing causes is or are significant, involves a factual exercise."[9]

[25] In Pleming v Workers' Compensation Board of Queensland, de Jersey P said, referring to the facts of the case before him:

"There is obviously at least one other contributing factor and on the evidence before the Magistrate that was certainly the major factor. There could be room, in theory, for another significant factor".[10]

[26] I accept that the appellant's primary concern after her exposure to the spittle of a HIV/AIDS patient was that she may herself contract HIV/AIDS. Whilst the appellant was not pleased with some aspects of the management action taken by Spiritus, they were, in my view, secondary to her primary concern of infection.

[27] In cross-examination, Dr Gassner was asked:

"And when you make reference to multiple issues, what are you referring to? ---Well, there were her infection, her other medical problems which are [indistinct] discomfort, possible other infections going on.

And was she anxious about those infections and problems she was experiencing?---I think she was anxious about all of them, the dominant one being the fear that she might have contracted some sort of serious infection in the course of her work."

[28] The symptoms suffered by the appellant following the exposure incident were sufficient for the Commission to conclude that the appellant had sustained an injury.

[29] The appellant's symptoms impacted on her ability to cope within the home and work environment. The evidence was that the appellant did not wish to return to work, was depressed, constantly thinking and talking about the incident, anxious and detached.

[30] The evidence of Jesse Thorpe was that in the period immediately following the exposure incident the appellant was withdrawn, depressed and crying. Even when the appellant return to work after her period of leave her behaviour remained the same. Mr Thorpe told the Commission that the appellant's behaviour during this period was unusual: "Well, usually Lisa would be down having a cup of tea and laughing, basically."

[31] The appellant had an attack of supraventricular tachycardia ("SVT"), a heart condition which she had suffered from since she was 14 years old.

[32] Dr Gassner regarded the appellant's anxiety which she experienced as a consequence of the exposure as being "very possibly" linked to her attack of SVT. In his clinical notes, Dr Gassner records: "Last woke cold sweaty nausea ABD pains Dyspepsia". He was of the opinion that the symptoms identified by him and recorded in his clinical notes "were the trigger for possible further bouts of SVT. In other words, she was very anxious."

[33] For the purposes of s 32(1), where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence".[11]

[34] The use of "a" significant contributing factor indicates that there can be more than one significant factor. In University of Tasmania v Cane, Wright J said:

"[A] Tasmanian worker who shows that her disease arose out of her employment, must also establish that such disease was one to which her employment contributed to a substantial degree" the word substantial" as used in the Act, s25(1)(b)is used in a relative sense. There is a recognition that there maybe other causes for the disease. Indeed it may be possible to say in any given circumstances that there are a number of "substantial" factors causing a particular condition".[12]

[35] In Mercer v ANZ Banking Group, Mason P, referring to the word "substantial" which appears before "contributing factor" in that State's Act, said:

"... remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be "the" substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition".[13]

[36] In Newberry v Suncorp Metway Insurance Ltd, Keane JA, with whom de Jersey CJ and Muir J agreed, said:

"Further, there is no warrant in the language of s 32 of the WCRA for reading the words "if the employment is a significant contributing factor to the injury" as lessening the stringency of the requirement that the injury "arise out of the employment", as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words "if the employment is a significant contributing factor to the injury" are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former."[14]

[37] Section 32(5)(a) of the Act provides that injury does not include a psychiatric or psychological disorder arising out of, or in the course of "reasonable management action taken in a reasonable way" by the employer in connection with the worker's employment.

"The earlier decision in Q-COMP v Education Queensland [2005] QIC 46; (2005) 179 QGIG 491 established the critical proposition that s. 32(5) of the Act is concerned with withdrawing injuries from s. 34(1) of the Act and is not concerned with nominating the 'stressors' which may be taken into account. The passage from the Industrial Laws of Queensland, is by way of commentary upon the decision of this Court in Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139. It is made by way of comment upon the rejection of the view that so long as a psychological/psychiatric injury is 'touched' by reasonable management action reasonably taken, it will be withdrawn from the statutory definition of 'injury' by the operation of s. 32(5)(a) of the Act. The passage is plainly correct. It is the effect of the decision in Q-COMP v Hohn, ibid, that a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way. However, 'may' cannot be read as 'must': nor may the passage be read as asserting that an Appeal Body is at liberty to allow a claimant to succeed where at least one stressor does not '... arise or occur in the course of reasonable management action taken in a reasonable way'. In all such cases, the Appeal Tribunal will be required to embark upon the enquiry whether the psychological/psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way. Here, that very enquiry was undertaken. The outcome was adverse to Mr Rowe. It follows that Mr Rowe does not have a recognisable claim."[15]

[39] Adopting the approach in Rowe it is not, on any proper consideration of the evidence before the Commission, possible to conclude that the injury arose out of, or in the course of, reasonable management action taken in a reasonable way.

[40] The respondent submitted that Dr Gassner made no reference to work issues in his clinical notes until 13 September 2011. It was submitted that the inference that could be drawn from that is that the appellant did not have any issues associated with the

2 June incident to warrant medical attention. The other inference that could be drawn, it was said, is that the appellant did not regard the various aspects of management action as being of significance to the onset of her physiological condition. The submission of the respondent ignores the note of Dr Gassner where he records on 28 June and 19 July 2011 the appellant's stress as relating to her exposure to an AIDS patient.

[41] I do not accept, for the reasons advanced above, the respondent's submission that the medical records do not support the contention that the exposure on 2 June 2011 was the primary stressor and the true cause of the appellant's injury. To support the submission, the respondent made reference to the report of Professor Whiteford dated 8 October 2012. Unfortunately, the respondent misquotes the report of Professor Whiteford by submitting that he had said the appellant "did not suffer a personal injury in relation to the work related incident on 2 June 2011." The report actually said that the appellant "did suffer a personal injury in relation to the work related incident on 2 June 2011" and, importantly, that "the incident on 2 June 2011 was a significant contributing factor to the onset of the adjustment disorder."[16]

[42] The evidence supports the conclusion that the appellant's primary concern from the time she felt the spittle of an HIV/AIDS patient in her right eye was the fear of contracting HIV/AIDS and dying. Whilst the management action was not inconsequential, it was of secondary concern to her primary fear of contracting HIV/AIDS.

[43] I am satisfied on the evidence before the Commission that the appellant has, on the balance of probabilities, discharged the onus of establishing that she suffered an injury within the meaning of s 32 of the Act.

2. The decision of the respondent is set aside and, in lieu thereof, substituted by a new decision accepting the appellant's application for compensation; and

3. The respondent is to pay the appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

[1] Further amended WCR Notice of Appeal filed 16 May 2013; T1-4, LL 19-24, 24-28.

[5] [2000] QIC 52; (2000) 165 QGIG 106, 107.

[8] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[9] (1997) 156 QGIG 100.

[11] Q-Comp v Green (2008) 189 QGIG 747.

[12] [1994] TASSC 73; (1994) 4 Tas R 156, 162.

[13] (2000) 28 NSWLR 740, 747.

[14] [2006] QCA 48; [2006] 1 Qd R 519, 532-3.

[15] [2009] QIC 17; (2009) 191 QGIG 67, 71 ("Rowe").