Swift Australia Pty Limited v Q-COMP

Date of decision: 3 September 2009, I.M. Haydn Stjernqvist

Mr A. Herbert of Counsel, directly instructed by the appellant

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

Key words – Boner - 39 – Injury Type: psychological – Appeal Outcome: appeal allowed - Significant sections considered: –

s32(1) an injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury

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

Head Note

The worker in this matter was employed by Swift Australia Pty Limited as a Boner at their Dinmore abattoir pursuant to a skilled worker visa, noting that the worker is a Chinese national. On 27 March 2006 the worker suffered a physical injury at the workplace involving a severe laceration to his left upper forearm. His claim for compensation for this injury was accepted and benefits were paid.

The worker ultimately filed a Notice of Claim for Damages on 20 February 2008 in respect of the physical injury but in which he also included an as yet unassessed psychological injury he claimed was the result of the physical injury.

The self-insured employer investigated the Notice of Claim for Damages and determined that the worker had not sustained an ‘injury’ in accordance with the Workers’ Compensation and Rehabilitation Act 2003 in respect of the psychological injury. This was on the basis that the insurer was satisfied that management’s actions in providing rehabilitation to the worker represented reasonable management action, reasonably undertaken and that it was only his perception that management’s actions were unreasonable and unreasonably undertaken.

The worker filed an Application for Review with Q-COMP on 18 June 2008. By its decision dated 24 July 2008, Q-COMP set aside the insurers decision and determined that the claim for damages in respect of the psychological injury should be accepted. Whilst a number of stressors allegedly causative of the workers’ condition were noted in the review decision, in reliance on the opinion of Dr Chalk, the Review Officer concluded that the injury arose as a result of the significant physical injury sustained rather than as a consequence of managements actions requiring the worker to undertake alternative duties as part of his rehabilitation.

IM Stjernqvist discussed the evidence of several witnesses, including the worker and the physicians consulted, in his decision. Before addressing section 32 of the Act as as it applied to the claim as a whole, the Industrial Magistrate particularly addressed the relevance of section 32(5)(c) of the Act to this claim. He concluded that as the rehabilitation process for the worker and the investigation of his claim ran in unison, the self-insured employer could rely upon this section in relation to the application for compensation by the worker.

IM Stjernqvist then considered the cause of the workers injury and concluded that the injury stemmed not only from the physical injury but also from the change in attitude of the worker to the ongoing rehabilitation process, including the provision of alternate duties which the employer was obliged to follow. He felt that the real genesis of the development of the worker’s adjustment disorder was in the existence of the obligation of the employer to require the worker to perform alternate duties. IM Stjernqvist was therefore satisfied that the management action, being the compensation and rehabilitation processes, were significant contributing factors to the development of the psychological injury.

Having determined that the management action was causal in the development of the workers psychological injury, IM Stjernqvist went on to determine that in respect of the rehabilitation process that the employer reacted in an appropriate way when informed by the worker of his ongoing pain, noting that they revisited the suitable duties plan on a number of occasions. The Industrial Magistrate concluded that the rehabilitation program and the compensation process could not be said to be unreasonable considering the totality of the actions and despite evidence that there had been delays in some adjustments to the suitable duties plans.

The appeal was allowed and the decision of the review unit was set aside.