Background

The appellant was employed by the Department of Education and Training from 1995. On 27 November 2019, she lodged an application for assessment of permanent impairment pursuant to s 132A of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’). The stated injury was ‘anxiety, depression, and post-traumatic stress disorder’, sustained over a period of time from “approx Term 3 2018 to April 2019”. At the hearing, the appellant relied both upon traumatic events that occurred within the workplace, specifically related to aggressive behaviour of students, as well as more “nebulous” factors such as a lack of support from her employer in respect of student behaviour, as being causative of her injury.  

The application was rejected by WorkCover on the basis that the appellant had not sustained an injury within the meaning of s 32 of the Act, a decision later affirmed by the Workers’ Compensation Regulator (“the Regulator”).  

Submissions

Scope of Facts Relevant to the Appeal 

During proceedings, an issue regarding the scope of facts relevant to the claim arose, with the Appellant seeking to rely on factual assertions at hearing that were not otherwise particularised in her s 132A application. In the Respondent’s view, the appeal should be confined to those particulars described in the s 132A application.  

Section 32(1) and Section 32(5) of the Act 

The appellant submitted that she had sustained an injury within the meaning of s 32(1) of the Act. 

The respondent submitted that the appellant’s injury was excluded by operation of s 32(5) of the Act as it arose as a result of reasonable management action taken in a reasonable way.  

Decision

The Commission found in favour of the appellant, setting aside the Regulator’s decision of 25 June 2020 and substituting it with a decision that the appellant’s claim pursuant to s 132A of the Act is one for acceptance.  

Scope of Facts 

The Commission was not minded to restrict the scope of facts relevant to the appeal to those identified in the appellant’s s 132A application, despite “forceful arguments” by the respondent to the contrary.   

In this regard, the Commission noted that the respondent had failed to identify “any statutory or other lawful authority supporting the proposition that an appellant is inextricably bound by the particulars specified in a s 132A application.” The Commission further noted that the function of a s 132A application is to merely initiate an application and that such an application does not constitute the commencement of a legal proceeding. The Commission asserted that the nature of the hearing as being by way of a hearing de novo, being a fresh hearing of an application on its merits, also did not support a conclusion that a worker ought to be bound by the particulars of their s 132A application. In the Commission’s view, only a worker’s Statement of Facts and Contentions binds them insofar as the scope of facts relevant to the appeal.  

Section 32(1) and Section 32(5) of the Act 

The Commission was satisfied that the appellant had sustained an injury within the meaning of s 32 of the Act. In this regard, the Commission relied heavily upon the evidence of Dr Andrew Shaw, Psychiatrist, whose evidence was unchallenged at the hearing.  

Dr Shaw diagnosed the appellant as suffering from post-traumatic stress disorder. In Dr Shaw’s view, this disorder arose in the context of multiple traumatic situations in her career, referring in part to an incident which occurred in 2007 during which the appellant was chased by a student with a baseball bat. Dr Shaw opined that this incident was the index event, with the event which led to the appellant’s presentation of post-traumatic stress disorder being an incident in April 2019 in which the appellant perceived that a student was going to assault her.  

The Commission opined that the management action identified by the appellant in her Statement of Facts and Contentions was, in each case, reasonable and reasonably taken. However, the Commission was not satisfied that such management incidents had the effect of enlivening s 32(5) of the Act, on the basis of Dr Shaw’s evidence that whilst such incidents were a contributor to the appellant’s condition, they were “ancillary” to the traumatic events that were casually related to the appellant’s post-traumatic stress disorder.   

If you have any queries regarding the article, please contact via Free Claim Checker or email us.