Tuesley v Workers' Compensation Regulator [2021] QIRC 71

Dixon v Australian Meating Holdings Pty Ltd [2003] QSC 267

Kiesouw v Workers' Compensation Regulator [2017] QIRC 064

Nichols v Workers' Compensation Regulator [2017] QIRC 111

WorkerCover Queensland v Padua [2016] QDC 115

APPEARANCES: Mr A. Stobie of Counsel, instructed by McNamara Law for the Appellant.

Mr P.B. O'Neill of Counsel, directly instructed by the Workers' Compensation Regulator.

• [1] The appellant, Ms Maureen Tuesley ("the appellant"), appeals a decision of the Workers' Compensation Regulator ("the Regulator") upholding a decision of WorkCover Queensland to reject the appellant's notice of claim for damages.

• [2] The hearing of this appeal recommenced on Monday, 15th of February 2021. On the second day of the recommenced hearing, following the evidence of Dr Estensen, the Regulator sought that I make a finding that the date of injury, relevant to the appellant's appeal, be determined to be 14 May 2012. It was agreed that following the evidence of Dr Haines, I would hear the parties further with respect to the Regulator's application, that I make a finding that the date of injury, relevant to appeal, be determined to be 14 May 2012.

• [3] Following Dr Haines' evidence, counsel for the Regulator submitted that the Commission determine that the date of the injury be 14 May 2012 or, in the alternative, 15 November 2012. Both the appellant and the Regulator provided written submissions with respect to the Regulator's application.[1]

• [4] The appellant's Statement of Facts and Contentions was filed in the Industrial Registry on 29 May 2018. The appellant contends,[2] that over the period of March 2012 to September 2014, she "developed a psychiatric or psychological condition arising from her employment as a significant contributing factor to the injury (s 32 of Act[3])". The appellant contends[4] that the injury arose out of the course of conduct described in paragraphs 5 and 29 of the appellant's Statement of Facts and Contentions.

• [5] The appellant does not nominate a date of injury in the Statement of Facts and Contentions. Further, the appellant contends before me that there is no need to nominate a specific date of injury on the basis that the injury occurred over a period of time. In written submissions, the appellant submits that the appellant's Statement of Facts and Contentions clearly alleges that the cause of the injury was a course of conduct over the period March 2012 to September 2014, and that caused the development of a psychiatric or psychological condition over that same period.

• [6] When asked what was the relevance of the end date of September 2014 nominated by the appellant, (other than it coinciding with the date the application for compensation was lodged), Counsel for the appellant was unable to nominate any other additional matter.

• [7] Counsel for the appellant accepted that what was required of the Commission was to make a determination as to what the injury is, when it occurred, and what gave rise to it. The point of difference between the parties is that the appellant contends that the injury date is over the course of period of time and there is no need to specify a particular date of injury within that time

• [8] The Regulator, in support of its position relies on the decisions of Kiesouw v Workers' Compensation Regulator[5] ("Kiesouw"), Nichols v Workers' Compensation Regulator[6] ("Nichols"), and Dickinson v Workers' Compensation Regulator[7] ("Dickinson").

• [9] The appellant contends that the Regulators' reliance on these authorities is misplaced. It is submitted by the appellant that the decisions do not create a principle of general application as each of the decisions are properly confined to their own facts.

• [10] In particular, the appellant submits that the use of the term "decompensation" in the orders contained in Kiesouw and Nichols is distinguishable from the facts of this matter as there is no evidence of decompensation in this matter.

• [11] I do not accept the appellant's characterisation of the inquiry the Commission was undertaking in either Kiesouw or Nichols. In Kiesouw, Deputy President Bloomfield[8] relevantly identified the issue for determination as follows:

Because of difficulties I had in identifying the date of diagnosis of Mr Kiesouw's psychiatric or psychological injury in his Statement of Facts and Contentions filed on 16 January 2017, I directed both Mr Kiesouw and the Regulator to file submissions (and copies of medical reports and the like) in relation to any diagnosis of the actual date of his decompensation...

• [12] In Nichols, Deputy President Bloomfield,[9] relevantly identified the issue for determination as follows:

In particular, the proceedings involve the determination of the date of Ms Nichol's psychological/psychiatric injury, so as to allow each of Ms Nichols, the Regulator and the Commission as presently constituted to better focus their attention on s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), insofar as it requires the Commission to determine the date Ms Nichols' psychological or psychiatric injury was sustained for the purposes of examining the factors causative of her sustaining that personal injury.

• [13] Accordingly, I consider the issue the Commission was turning its mind to, in Kiesouw and Nichols, to be similar to the issue the Regulator has asked me to determine in this proceeding. As noted in the Regulator's submissions,[10] it is seeking a determination of the following matters:

(a) Firstly, whether the appellant has sustained an injury and the nature of the injury; and

(b) Secondly, the timing of when the injury has been sustained.

• [14] The Regulator submits that this a matter of some importance in this appeal for two reasons: firstly, to determine the scope of the appeal in reliance upon the submissions made yesterday, that it is only factual matters which have caused or contributed to the injury that are relevant and should be considered by the Commission. Secondly, that there was a change to the legislation on 15 October 2013 which altered the statutory test from a significant contributing factor to the major significant contributing factor for psychiatric injuries. It was submitted that determining the date of the injury is essential to confirm which of the statutory tests is applicable.

• [15] Mr Stobie, for the appellant, has taken me to several authorities including Dixon v Australian Meating Holdings Pty Ltd[11] and WorkerCover Queensland v Padua[12]. Each of these decisions have limited relevance to my consideration of this matter as they each turn on a different inquiry in relation to unrelated statutory provisions.

• [16] At this juncture, I should make it clear, however, that it is accepted that an injury may occur over time. As such, the matters leading up to when the injury is sustained, albeit over a period of time, may be considered relevant to the causation of that injury.

• [17] In this matter, the appellant contends that the injury occurred over a period of time without nominating when the injury commenced, other than to state that it developed over the period March 2012 to September 2014.

• [18] When asked when the injury commenced, Mr Stobie submitted that the injury began to be sustained between March 2012 to 14 May 2012 but continued to be sustained during the period up to September 2014. The effect of this submission was that the whole period from March 2012 to September 2014 was relevant with respect to the causation of the injury. I do not accept that submission as a principle of general application. Further, I do not consider that it accords with the evidence before me.
• [19] I have:

(c) referred to the Mental Health Review Plan of Dr Auer of 14 May 2012[13]; and

(d) considered the evidence-in-chief of the appellant.

• [20] With respect to Dr Estensen's evidence, he was called by the appellant and provided an expert report.[14] It is clear, by reference to the report and his evidence, that Dr Estensen had carefully reviewed the appellant's history and consulted the notes of her other treating medical practitioners. Dr Estensen was asked when he considered the injury to have commenced. He responded[15] by saying words to the effect that "the pathological commencement of the disorder was around the consultation with Dr Auer on 14 May 2012"[16]. It was further put to Dr Estensen whether he would prefer to nominate the date of a later consultation with Dr Auer, being 15 November 2012 or the 14 May 2012 consultation. His response was to the effect, "I would strongly go with Dr Auer's consultation of 14 May 2012". Additionally, after referring to the appellant's consultation with Ms Hollis on 5 June 2012, Dr Estensen said the condition was "up and running by then".

• [21] I am satisfied that the evidence of Dr Estensen supports a determination of a date of injury of 14 May 2012. In this regard, I do not accept the alternative date, being 15 November 2012, put by the Regulator.

• [22] Dr Haines gave evidence that she commenced treating the appellant in July 2013. Her evidence was that the injury had commenced prior to when she commenced treating the appellant in July of 2013.

• [23] I have also had regard to the G.P Mental Health Care Plan[17] which identified "ongoing work stressors" that was dated 14 May 2012. The appellant was taken to exhibit 12 in cross-examination and confirmed that the only work stressors at that time were those that she complains about during the course of this proceeding regarding Ms Ross' treatment towards her. The G.P Mental Health Care Plan[18] provides a provisional diagnosis of "depression, anxiety", and suggests treatment of Lexapro and CBT (being cognitive behavioural therapy) with a psychologist.

• [24] I have also had regard to the appellant's evidence-in-chief.[19] On the appellant's evidence, she commenced having symptoms in or about 2012. Relevantly, I note in particular the following extracts from the transcript[20]:

When did you start getting panic attacks?---In 2012, but they got quite severe as time went on, because I'd be driving to work and sometimes I would have to pull over because I - I couldn't breathe.

Those panic attacks that you started getting in 2012, how often were you getting them?---They were quite regular. Like it got to a stage that they just wouldn't go away.

Did those panic attacks persist at the same kind of frequency or level into 2013?---They just got worse and worse.

Yeah, I didn't have any energy. I was always tired and aching.

When did that start to be the case?---I think within the first six months of 2012, the- stress and just upset and discomfort and all that - it just started to get worse and worse.

It was early 2012. What month I'm not sure, but - - -

• [25] The evidence contained in these passages are consistent with the appellant suffering an injury in the first half of 2012 which accords with the evidence provided by the medical experts in relation to her condition.

• [26] As noted by Deputy President Bloomfield in Kiesouw events which occur after a worker suffers a psychological or psychiatric injury, cannot have contributed to the development of such an injury. Consequently, there is a need to identify when an injury occurred so as to only permit material relevant to the development of causation of that injury to be canvassed in an appeal proceeding.

• [27] Based on the medical evidence and the other evidence I have referred to; I have determined that the date of injury to be 14 May 2012.

1. The date of injury is determined to be 14 May 2012.

[1] See Exhibit 24 and Exhibit 25 respectively.

[2] At paragraph [30] of the Appellant's Statement of Facts and Contentions.

[3] The reference to "the Act" is a reference to the Workers' Compensation and Rehabilitation Act 2003 (Qld).

[4] At paragraph [31] of the Appellant's Statement of Facts and Contentions.

[6] [2017] QIRC 111.

[7] [2019] QIRC 068.

[11] [2003] QSC 267.

[12] [2016] QDC 115.

[15] Noting that the transcript is not yet available.

[16] Noting that the transcript is not yet available.