Appellant v Q

Brenda Clare Whyte v Q-COMP

Date of decision: 14 July 2009, Commissioner Asbury

Mr Ken Fleming of Counsel, instructed by Dempseys Lawyers for the appellant

Mr Stephen Gray of Counsel, directly instructed by Q-COMP

Mr M Spry of Counsel, directly instructed by Crown Law

Key words – Custodial Manager - 46 – Injury Type: psychological – Appeal allowed

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

Head Note

Brenda Whyte (Claimant) was employed by the Queensland Department of Corrective Services as a Custodial Manager, having commenced employment in May 1987.

The Claimant lodged an Application for Compensation with WorkCover (Insurer) on 6 February 2008, for a psychological injury which she claims arose over a period of time as a result of a series of events and interactions involving John Harrison, general manager of the Townsville Correctional Facility.

The Insurer undertook an investigation into the circumstances surrounding the Claimant’s Application for Compensation and on 19 March 2008 provided written notice of the decision to reject the application on the basis that the injury had arisen out of reasonable management action.

The Claimant applied to Q-COMP for review of the Insurer’s decision. On 8 August 2008, Q-COMP confirmed the Insurer’s decision to reject the Claimant’s application as the provisions of section 32(5) of the Act operated to exclude the Claimant’s psychological condition from the definition of ‘injury’.

The Claimant appealed to the QIRC. Professor James, psychiatrist agreed that if the Claimant considered suicide in February or March 2005, then this was when her condition became apparent to her. The Claimant continued to work from 2005 until November 2007 notwithstanding her symptoms. In November 2007, the Claimant visited her general practitioner and during the consultation the Claimant broke down and said that she could not cope anymore. The Claimant’s general practitioner recommended that she take two weeks off work and the Claimant has remained absent from the workplace on leave since that date.

Commissioner Asbury found that two stressors caused the Claimant’s injury, namely, the implementation of the “Lewis Report” recommendations and related events and the first individual interactions between the Claimant and Mr Harrison.

Commissioner Asbury was of the view that further events and interactions described by the Claimant were additional stressors which contributed to her injury developing a major depressive disorder. She stated that arguably these further factors are not relevant to the issues in dispute in the appeal as they occurred after the Claimant sustained her injury. Having said that, the Commissioner went ahead to determine these incidents and interactions between Mr Harrison and the Claimant and concluded that these were all matters which contributed to the development of the

injury which the Claimant suffered in February or March 2005.

Commissioner Asbury stated that the injury was caused by two stressors which did not constitute reasonable management action. Accordingly, the injury is not withdrawn from section 32(1) of the Act by the operation of section 32(5) of the Act. Thereafter, the injury developed into a major depressive disorder because of the further incidents between Mr Harrison and the Claimant after March 2005.

Commissioner Asbury stated that once the injury was sustained and the matters which caused it were not reasonable management action taken in a reasonable way, subsequent matters could not withdraw it from the definition of injury in section 32(1). However, for the sake of completeness she went on to determine whether these further events were reasonable management action taken in a reasonable way.

Commissioner Asbury stated that all of these further incidents and interactions contributed to the development of the injury sustained by the Claimant in February or March 2005. She concluded that some of them were reasonable management action taken in a reasonable way and some were unreasonable management action. However, it is probable that all of the incidents and dealings occurring after the injury was sustained had a much more significant impact on the Claimant because of the effects of the injury.

On that basis, the Commissioner decided that if those incident and interactions are relevant to the consideration of whether the Claimant’s injury was withdrawn from the operation of section 32(1) by section 32(5), that a global consideration would be warranted. Considered globally these incidents and interactions essentially involved Mr Harrison and the Claimant. Commissioner Asbury stated that Mr Harrison, as General Manager should have been conscious of the very real likelihood that the Claimant would be feeling threatened and insecure, and adapted his behaviour accordingly. The appeal was upheld and the decision of the Q-COMP Review Unit was set aside.

This decision has been appealed to the Queensland Industrial Court