Darren Lewis v Q-COMP

Date of decision: 15 January 2010, IM Lee

Ms S Anderson of Counsel, instructed by Shine Lawyers for the appellant

Mr C Clark of Counsel, directly instructed by Q-COMP

Key words – Plant Operator – 41 – Injury Type: psychological – Appeal Outcome: appeal allowed – Significant sections considered:

s32(5) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment

Head Note

The appellant was employed as a Plant Operator. The appellant alleged that he developed a psychological injury over a period of time from 2004 to 2007 as a result of conflict and interactions with co-workers and management personnel.

The appellant lodged an application for compensation dated 28 November 2007 with WorkCover Queensland. In reasons for decision dated 12 February 2008, WorkCover advised the appellant of their decision to reject the application. The appellant lodged an application for review dated 11 May 2008 with Q-COMP. In reasons for decision dated 26 June 2008, Q-COMP advised the appellant of the decision to confirm WorkCover’s decision to reject the applicant, on the basis that the appellant’s psychological injury arose out of reasonable management action taken in a reasonable way. The appellant lodged a notice of appeal with the Industrial Magistrates Court on 4 August 2008.

On appeal, the appellant relied on four stressors: issues with a co-worker, verbal abuse by the leading hand at a toolbox meeting in March 2007, inappropriate behaviour by the production coordinator at a meeting on 30 August 2007, and an inappropriate threat by the production manager at a meeting on 31 August 2007. IM Lee took a ‘longitudinal approach’ and concluded from the medical evidence that the appellant’s psychological injury developed over a period of time as a result of the cumulative effects of all the nominated stressors. IM Lee therefore concluded that the appellant’s psychological injury arose out of or in the course of the appellant’s employment and the employment was a significant contributing factor to the injury.

IM Lee found that the co-worker’s actions were not management action, and concluded that management’s failure to address the appellant’s requests to remedy the issue until he lodged a written complaint in 2006 was not reasonable management action taken in a reasonable way. IM Lee further found that verbal abuse by the leading hand was not management action. However, the leading hand’s delay of two weeks in apologising to the appellant was unreasonable. Similarly, IM Lee found that the actions of the production coordinator and production manager on 30 and 31 August 2007 were not management action. In the alternative, IM Lee concluded that these actions were inappropriate and unreasonable. IM Lee further concluded that the production manager’s statement was a substantial contributor to the development of the appellant’s psychological injury.

Therefore, IM Lee held that the appellant’s psychological injury did not arise out of or in the course of reasonable management action taken in a reasonable way, and section 32(5) did not exclude the psychological injury from the definition of ‘injury’ in section 32(1). IM Lee allowed the appeal.