McCarthy v Workers' Compensation Regulator [2022] QIRC 187

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Qantas Airways Limited v Q-Comp (2006) [2006] QIRComm 27; 181 QGIG 301

Mr L Willson of counsel, instructed by Ms C L Godfrey of the Workers' Compensation Regulator

• [1] On 18 January 2021, Ms Michele McCarthy filed an appeal against a decision of the Workers' Compensation Regulator ('the Regulator') dated 10 December 2020. The hearing of that appeal (matter WC/2021/5) commenced in Townsville on 16 May 2022.

• [2] After four days of evidence from witnesses called by Ms McCarthy her case in the appeal concluded. Immediately upon the close of Ms McCarthy's case, the Regulator made an application inviting me to exercise my powers under s 558 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act') and asked that I dismiss the appeal on the basis that the evidence presented by Ms McCarthy did not establish that the medical condition constituting her injury arose from her employment.

• [3] The Regulator submitted that in the circumstances, no further inquiry ought to be undertaken in relation to the appeal. In order to consider the application by the Regulator, it is necessary to consider the scope and conduct of Ms McCarthy's appeal and the evidence that was led (and not led) in the proceedings.

• [4] At the outset it ought to be noted that Ms McCarthy represented herself in these proceedings. In the latter part of 2021, I questioned her capacity to do so.

• [5] Ms McCarthy's appeal was originally listed for hearing before me in early December 2021 however, in the weeks preceding the hearing, Ms McCarthy initiated certain communications with the Industrial Registry staff that caused them concern for her well-being.

• [6] To protect her privacy, I do not intend to disclose the details of those communications in these reasons. Suffice to say that when I was informed of them, I was prompted to list the matter for mention to inquire after Ms McCarthy's well-being but also, to ascertain whether she had requisite capacity to conduct the appeal on her own behalf.

• [7] Following a mention of the matter on 17 November 2021 I subsequently ordered that the scheduled hearing be adjourned and directed that Ms McCarthy supply confirmation from her treating psychiatrist confirming her capacity to conduct a five-day hearing on her own behalf.

• [8] On 9 December 2021 Ms McCarthy subsequently supplied a letter from Dr Rupak Dasgupta, her psychiatrist. The letter confirmed her capacity to conduct the proceedings on her own behalf. In the circumstances, the appeal was rescheduled to commence on 16 May 2022.

• [9] Notwithstanding her decision to represent herself in the proceedings, I note that throughout the course of the four days of hearing, Ms McCarthy made numerous comments about the difficulties she was experiencing in conducting the appeal. I have no doubt about this. However, as I reminded her at the time, self-representation is a misfortune and not a privilege.[1]

• [10] Following completion of the pre-hearing directions, including an exchange of lists of witnesses, Ms McCarthy subsequently caused a number of attendance notices to be issued. Ms McCarthy clearly sought to secure the attendance at the hearing of certain lay witnesses from whom she intended to (and subsequently did) lead evidence.

• [11] Not included in either her list of witnesses or those named in any attendance notices she issued was Ms McCarthy's general practitioner, Dr Zoe Martinez. Approximately one week prior to the commencement of the hearing, Ms McCarthy emailed correspondence from Dr Martinez to the Industrial Registry. The correspondence was in the form of a medico-legal report, purportedly setting out an opinion on a causal nexus between Ms McCarthy's medical condition and events at the workplace.

• [12] Out of an abundance of fairness to Ms McCarthy, a mention was listed to establish what Ms McCarthy's intention was with respect to calling Dr Martinez as a witness.

• [13] At the mention on 6 May 2022, Ms McCarthy advised she would not be calling Dr Martinez due to certain family commitments that the doctor had during the week of the hearing.

• [14] In the circumstances, Ms McCarthy was informed during the mention that unless the Regulator consented, letters from Dr Martinez would not be admissible if Dr Martinez was not also giving evidence at the hearing. Ms McCarthy was adamant she would not be calling Dr Martinez.

• [15] During the mention I was at pains (through continual interruptions from Ms McCarthy) to ensure that the record reflected that Ms McCarthy had successfully issued attendance notices for other witnesses and she was therefore more than aware she could compel people to attend to give evidence. Ms McCarthy continued to insist at the mention she would not compel Dr Martinez to give evidence because '...it would be a cruel thing to do'.[2]

• [16] At this time Ms McCarthy sought no adjournment of the impending hearing, nor did she propose any other solution. I note further that Ms McCarthy successfully called evidence from Dr Dasgupta via telephone. She sought no leave to make similar arrangements for Dr Martinez.

• [17] At the hearing of the appeal, the clinical notes from Dr Martinez's practice were tendered by consent but Dr Martinez was not called to give evidence.[3] The clinical notes revealed two important things:

1. Dr Martinez has been treating Ms McCarthy for anxiety disorder and reactive depression since November 2017; and

1. these conditions were purportedly linked to work-related events as early as 6 November 2017.

• [18] Ms McCarthy's statement of facts and contentions and list of stressors included a timeline of events that began in or about October 2016 and continued until October 2019.

• [19] The Regulator's statement of facts and contentions contended that the scope of the appeal was limited to the period between November 2018 and June 2019, firstly, because the events prior to November 2018 were statute barred and secondly, that the events after June 2019 were post-injury events.[4]

• [20] The issue with respect to the events predating November 2018 was not finally determined before the hearing. It was dealt with during the course of Ms McCarthy's evidence when she sought to give evidence about these earlier matters.

• [21] When pressed on the relevant matters relating to the statutory limitation on Workers' Compensation claims,[5] Ms McCarthy gave evidence that she was aware that Dr Martinez had causally connected her condition to her employment in November 2017. She clearly understood this.[6]

• [22] Ms McCarthy also gave evidence she had obtained legal advice during this period, which she says was to the effect that she could make a Workers' Compensation claim, but she said she elected not to do so because she hoped things would improve.[7] She continued to work throughout that relevant period of the time limitation and was not otherwise able to convince me that she was sufficiently incapacitated such that she could not exercise her statutory rights during that period.[8]

• [23] In the circumstances, I ruled that the scope of her appeal be limited to work events occurring after October 2018.

• [24] The only medical evidence led by Ms McCarthy at the hearing was from Dr Dasgupta, her treating psychiatrist. It was my impression that Dr Dasgupta was not properly prepared. While he was clearly aware that he had agreed to give evidence in the proceedings, he gave evidence by telephone while on a break from a conference he was attending in Sydney. It seemed he had no relevant notes or other material with him to assist him in answering questions about his treatment and diagnosis of Ms McCarthy.

• [25] Overall, it was my impression that Dr Dasgupta gave rushed and impatient answers when asked important questions about Ms McCarthy's condition. What was clear from his evidence, however, was that he first commenced treatment of Ms McCarthy in October 2020, that is, well over 12 months after Ms McCarthy had ceased work and made her claim for compensation.

• [26] In Dr Dasgupta's evidence he said he did not make a diagnosis immediately after seeing her, but after a number of sessions concluded that Ms McCarthy had a major depressive disorder with anxious distress. Dr Dasgupta said that the condition arose from a number of factors, some of which post-dated Ms McCarthy's departure from work and the certification by Dr Martinez.[9]

• [27] Importantly, Dr Dasgupta confirmed his opinion was based on the history that had been provided to him by Ms McCarthy. Whilst Dr Dasgupta appeared initially to support a causal connection between work events, he began to retreat from that opinion when he was informed of a prior workers' compensation stress claim made by Ms McCarthy in respect of her former employment in or about 2009.

• [28] It would seem that Ms McCarthy had either not informed Dr Dasgupta of this information when giving him history of her mental health or if she did, Dr Dasgupta had failed to consider it. In any event, he gave evidence that in the absence of considering the details of this aspect of her mental health history, he was less confident in saying whether her work-related factors were significantly causative of her current condition.[10]

• [29] It was further apparent that Dr Dasgupta had a broadly inadequate knowledge of Ms McCarthy's full mental health history. Whether this was a feature of his lack of preparation to give evidence or a lack of taking the history, he seemed to agree that it undermined his opinion somewhat.

• [30] Counsel for the Regulator submits that the clinical notes of Dr Martinez confirm that Ms McCarthy has had a diagnosis of anxiety disorder with reactive depression since November 2017. This is also confirmed in the work capacity certificate.[11]

• [31] The clinical notes of Dr Martinez confirm that Ms McCarthy was seen for this condition on multiple occasions between November 2017 and 11 October 2018.[12] The clinical notes were not in any way contested in respect of accuracy of the contents. Ms McCarthy remained on treatment for this condition in the form of prescription medications consistently throughout the period commencing November 2017 until at least June 2019 when she ceased work.

• [32] In circumstances of the medical evidence provided, the Regulator submits that the condition suffered by Ms McCarthy was well and truly present before the events nominated as her stressors between November 2018 and June 2019. As such, they submit there is no medical evidence supporting her conclusion that her employment, in the context of those stressors, was a causative factor of her condition.

• [33] Following the making of the application by the Regulator on the fourth day of proceedings, Ms McCarthy was invited to make submissions in response to the Regulator's application. Ms McCarthy was offered (a number of times) an opportunity for a short adjournment to collect her thoughts and consider the Regulator's submissions and then respond.

• [34] Without expressly accepting or declining these offers, Ms McCarthy simply continued to make largely unrelated statements expressing her dissatisfaction with all manner of aspects of this proceeding and made very little attempt to respond to the relevant issues in respect of the application.[13]

• [35] I have no doubt that Ms McCarthy is affected by anxiety and depression. So obvious is her affliction that based on earlier dealings with her, I took the relatively unusual step of having her produce medical evidence confirming her capacity to conduct her own appeal.

• [36] In the circumstances where Ms McCarthy was able to procure confirmation from Dr Dasgupta that she was fit to run her own proceedings I had little option but to allow the appeal hearing to proceed despite my continued misgivings about her capacity.

• [37] It is trite to observe that this appeal is by way of a hearing de novo,[14] and Ms McCarthy as the appellant has the onus of proving on the balance of probabilities, that her claim is one for acceptance.[15] The proof required is proof that she meets each of the elements of the definition of injury contained at section 32 of the Act.

• [38] Section 32 of the Act relevantly provides as follows:

(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.

• [39] There was never likely to be any real dispute that Ms McCarthy met the definition of a worker,[16] or that she had a personal injury within the meaning of the Act.[17]

• [40] The real contest in this appeal was always going to be about:

1. whether the injury arose out of her employment;

1. whether the employment was the major significant contributing factor; and

1. if the employment was the major significant contributing factor, whether section 32(5) of the Act operates to exclude her claim.

• [41] Ms McCarthy had the onus of proving all of these things. On all of the evidence presented when she closed her case, it was patently clear she has failed to discharge that onus. The clinical notes of Dr Martinez (that were not contested by Ms McCarthy) clearly show her condition was well established before the relevant events occurred.

• [42] There was no contention that the events between November 2018 and June 2019 were aggravations of that pre-existing condition. And even if there was, that would have to have been supported by medical evidence. Dr Dasgupta gave only speculative evidence about this, and Dr Martinez was not called.[18] Accordingly, no such conclusion could be drawn.

• [43] A conclusion that the illness suffered by Ms McCarthy pre-dates the relevant work events is the only conclusion available on the evidence she has presented. In those circumstances I consider that the Regulator's application to dismiss the appeal must succeed.

• [44] I would further note that while it was not a submission made by the Regulator in support of their application, the evidence of Dr Dasgupta fell well short of supporting a conclusion that Ms McCarthy's employment was the major significant contributing factor.[19] Had such a submission been made, I consider the dismissal of Ms McCarthy's appeal would have been equally inevitable.

• [45] In the circumstances, I make the following orders:

1. The Regulator's application to dismiss the appeal is granted.

2. The appeal in matter WC/2021/5 is dismissed.

3. Any application for costs must be made within 21 days of 20 May 2022.

[1] Gambaro v Workers' Compensation Regulator [2017] ICQ 005, 14.

[2] Mention on 6 May 2022, T1-12, l 7 - T1-16, l 38.

[4] Workers Compensation and Rehabilitation Act 2003 (Qld) s 131.

[5] Ibid, s 131(6).

[10] T 3-9, l 40 - T 3-10, l 13; T 3-13, ll 15-44.

[14] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031.

[15] Qantas Airways Limited v Q-Comp [2006] QIRComm 27; (2006) 181 QGIG 301.

[16] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11.

[17] Workers' Compensation and Rehabilitation Act 2003 (Qld) s32(3).