Recent appeal cases summaries on 'reasonable management
action'.
Q-COMP v Glen Rowe (C2009/6)
Mr Rowe made an application for compensation in June 2008 for a
psychological injury he allegedly sustained over a period of time
as a result of three work-related stressors.
WorkCover investigated the claim and determined to reject it, a
decision confirmed on review by Q-COMP. Q-COMP concluded that
whilst stressor 1 arose out of unreasonable management action,
stressors 2 and 3 arose out of reasonable management action and
therefore removed the injury from the definition in section 32(1)
of the Workers' Compensation and Rehabilitation Act 2003
(the Act).
Mr Rowe then appealed Q-COMP's decision to the Queensland
Industrial Relations Commission. On appeal Commissioner
Fisher agreed with the assessment of Q-COMP that stressor 1
constituted unreasonable management action and stressors 2 and 3
constituted reasonable management action. However she went on
to conclude that stressor 1 was a significant contributor to the
injury, being excessive and extraordinary, and that this was the
final point of Mr Rowe's decompensation. Commissioner Fisher
then concluded that by applying President Hall's decision in
Q-COMP v Hohn (2008) 187 QGIG 139, it was sufficient for
Mr Rowe's claim to succeed and the appeal was upheld.
Q-COMP appealed the Commissioner's decision to the Industrial Court
on the basis that the Commissioner's approach seemed to allow that
a stressor characterised as 'significant' and unreasonable could
prevail over stressors considered to constitute reasonable
management action, an approach considered by Q-COMP to be contrary
to previous Industrial Court decisions. Further, Q-COMP
contended that Mr Rowe's psychiatrist, Professor James, was of the
opinion that all of the nominated stressors contributed to his
injury and caused the eventual decompensation.
President Hall stated that he has never accepted the proposition
that 'even if one stressor is caught by reasonable management
action it will be sufficient to remove the
psychiatric/psychological disorder from the definition of injury
in…the Act'. He also noted that Q-COMP v Education
Queensland (2005) 179 QGIG 491 establishes that section 32(5)
of the Act is concerned with withdrawing injuries from the
definition in the Act and not nominating 'stressors' which may be
taken into account.
President Hall went on to state that the effect of the decision in
Hohn is 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 but that
'may' cannot be read as 'must'. Therefore the passage should
not be read as meaning that an appeal body is at liberty to allow a
Claimant to succeed where at least one stressor does not arise out
of reasonable management action, reasonably taken.
President Hall allowed the appeal, the decision of Commissioner
Fisher was set aside and the decision of Q-COMP re-instated.
Rachel Nicole Parker v Q-COMP [2007] QIC 25 (17 July
2007)
In December 2003 Ms Parker applied for compensation for a
psychological injury which was rejected by WorkCover. Q-COMP
subsequently confirmed this rejection on the basis that the medical
condition, schizophrenia, did not arise out of or in the course of
her employment, nor was employment a significant contributing
factor to the injury.
In September 2006 the Industrial Magistrate, on appeal, concluded
that Ms Parker's schizophrenia, a pre-existing condition, had been
aggravated by her employment and that her employment was a
significant contributing factor to the aggravation. On the
basis of this conclusion, written submissions were then invited
from the parties regarding the operation of s.32(5) of the
Workers' Compensation and Rehabilitation Act 2003 -
reasonable management action.
The Industrial Magistrate considered those submissions and
concluded that the aggravation of Ms Parker's psychological
disorder arose in the course of management action on the basis that
management's investigation of Mr Burgess was undertaken as a result
of Ms Parker's complaint. It was also determined that the
investigation into Mr Burgess was conducted appropriately by
management, noting both the actions and inactions of management,
and as such the management action was not unreasonable and the
injury was excluded from the definition in the Act.
The matter was then appealed to the Industrial Court where
President Hall agreed with the Industrial Magistrate's findings
regarding the nature of the management actions leading to Ms
Parker's injury and agreed that her injury had arisen out of
management action which was both reasonable and reasonably
taken.
Ms Parker subsequently appealed President Hall's decision to the
Supreme Court by way of application for judicial review and it was
concluded that no jurisdictional error had been made by President
Hall in reaching his conclusion. Ms Parker made a further
appeal of Justice Lyons' findings to the Court of Appeal and the
full court of the Supreme Court confirmed Justice Lyons'
decision.
For more information on these cases, visit www.wageline.qld.gov.au or www.austlii.edu.au
Search QWCDec on our website for the initial appeal decision from
the Industrial Magistrates Court and Queensland Industrial
Relations Commission.
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