Background

The Appellant carried out employment as a Visual Merchandise Planogram Builder for CGL Retail Services Pty Ltd.

On 12 May 2021, the Appellant made an application for compensation in relation to a shoulder injury. This application was accepted by WorkCover Queensland (“WorkCover”) on 15 May 2021. Thereafter, the claim in relation to the Appellant’s shoulder condition was closed and a new claim was commenced for an accepted neck injury.

By 19 October 2021, the Appellant alleged that she had sustained a psychiatric injury, or in the alternative an aggravation of a pre-existing psychiatric condition. The Appellant contended that her neck injury was a significant contributing factor to her psychological condition, citing ongoing pain, functional limitations, an inability to work, and associated financial loss. The Appellant conceded that she experienced additional stressors during the relevant period, including her dealings with WorkCover and interpersonal issues with family, but submitted that such stressors did not significant contribute to her psychiatric condition.

The Appellant’s application for compensation was rejected, a decision later affirmed by the Workers’ Compensation Regulator (“the Regulator”). It was the Regulator’s contention that whilst the Appellant suffered from mild depression, the only significant contributing factors of this condition were the Appellant’s marriage breakdown and her interactions with WorkCover and the Regulator.

The Regulator submitted that, even if the Appellant’s neck condition was a significant contributing factor to her psychiatric injury, the injury did not constitute an “injury” within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”), as it was excluded by operation of s 32(5)(c), which precludes compensation for injuries arising out of the actions of the Regulator or WorkCover.

Appellant’s Job Role and Workers’ Compensation Claims

As identified by the Commission, for determination was: –

  1. Whether the Appellant’s neck injury was a significant contributing factor to a new psychiatric injury or an exacerbation of a pre-existing condition;
  2. If it was, then whether the injury was excluded by operation of s 32(5)(c) of the Act.

Decision

The Commission found in favour of the Appellant. It set aside the Regulator’s decision and substituting it with one that the Appellant suffered a psychiatric injury within the meaning of s 32 of the Act, which was not excluded by s 32(5)(c) of the Act.

The court considered evidence from several witnesses at the hearing of the matter, including the Appellant, her friend, her mother, her treating psychologist, and three psychiatrists.

It was the unanimous opinion of the psychiatrists that the Appellant was experiencing pain as a result of her neck condition; however, they differed in the emphasis placed on whether this pain was the primary causative factor of her psychiatric condition. For instance, Dr John Chalk opined that the predominant contributor to the psychiatric injury was the stress associated with interactions with WorkCover. In contrast, Dr Khaldoon AlSaee did not regard this as a significant contributing factor. Ultimately, the Commission concluded that the pain and its consequences were a significant contributing factor to the Appellant’s psychiatric injury, preferring the evidence of Dr AlSaee over that of Dr Chalk on the basis that it was underpinned by a more detailed clinical history.

The Commission considered the operation of s 32(5)(c) in the circumstances, relying again on the psychiatric evidence given at the hearing. It concluded that whilst stressors associated with the Appellant’s interactions with WorkCover contributed to the psychiatric injury, it was not satisfied that this was a significant contributor. As Pidgeon IC opined, the Appellant’s frustration with the claim process did not displace the significant contributing factor to her psychological injury, being the pain resulting from her accepted neck injury. In this regard, Pidgeon IC relevantly asserted that:

“As Dr AlSaee observed, difficulty with the WorkCover process is a common complaint from claimants. Finding the process difficult or complaining about it does not, without more, mean that the injury should be excluded on the basis of s 32(5)(c) of the WCRA.”

Key Takeaway

This decision underscores that not all stressors related to the workers’ compensation claim process will trigger the exclusion under s 32(5)(c) of the Act. The Commission will carefully weigh available medical evidence and causative significance of different factors to determine whether such factors are merely incidental or genuinely significant in contributing to the psychiatric injury.

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