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Are psychiatric injuries resulting from an employer’s reasonable performance management actions compensable? In short, almost never

Deshong v Workers’ Compensation Regulator [2021] QIRC 205[1]

Facts

The Health Council employed Ms Deshong as a social and Emotional Well-being Counsellor, which required her to be a Fly-in/Fly-out of Hope Vale, four days per week.

Ms Deshong applied for worker’s compensation, claiming she developed a workplace-related psychological injury following a verbal assault from her supervisor and the employer’s mismanagement of her return to work after a non-worked related injury. This application was rejected, and the Regulator confirmed the decision as the alleged personal injury arose out of or in the course of reasonable management action. Ms Deshong appealed the Regulator’s decision, but the Queensland Industrial Relations Commission (‘QIRC’) confirmed the two earlier decisions.

Relevant legislation

Sections 11 and 32 of the Workers’ Compensation Act (‘Act’) were the subject of dispute.

For Ms Deshong’s psychological injury to be compensable, she should have proved on a balance of probabilities, the below requirements:

a. that she was a worker within the meaning of section 11 of the Act;

b. that she suffered an injury;

c. that the employment was the major significant contributing factor to her injury within the meaning of section 32(1) of the Act;

d. that the psychiatric or psychological disorder did not arise in the course of an employer’s reasonable management action that was taken in a reasonable way, 32(5) of the Act.

Undisputed requirements

a. that Ms Deshong was a worker within the meaning of section 11 of the Act- she worked under a contract and was an employee for assessment for PAYG;

b. that Ms Deshong suffered a personal injury. She was diagnosed with adjustment disorder with mixed depression and anxiety.

Issues

a. Whether Ms Deshong’s employment was the major significant contributing factor to her personal injury?

Ms Deshong listed eight events related to her employment that had a causal connection with her injury.[2] In summary, those events were:

  1. On 20 March 2018, Ms Deshong was the victim of verbal abuse from a Team leader Ms Hart on her work premises at Hope Vale.
  2. The following day, Ms Hart refused to acknowledge her presence and rudely waved her away when she greeted her. Ms Deshong had not slept the night before so went to Medical Centre. She took the rest of the day off as sick leave.
  3. On 22 March 2018, Ms Deshong returned home and spent most of the evening crying.
  4. On 23 March 2018, Ms Deshong lodged an incident Report with HR. She was upset that her employers did not take Immediate action in the case.
  5. On 15 May 2018, Ms Deshong had a non-work-related shoulder injury.
  6. In July 2018, Ms Deshong lodged an Anti-Discrimination Commission Queensland complaint because the Health Council did not allow her to return to work after presenting a medical certificate that stated she could perform light duties. The Health Council argued that there was no work available for her under those conditions, except for a management and training ship.
  7. On 5 October 2018, she lodged a request for safety implementations before returning to work in Hope Vale because she would work under semi-hostile conditions as she thought there was gossip regarding her claims. The Health Council refused this request.
  8. On 15 October 2018, while waiting to board a plane to Hope Vale, Ms Deshong had a major Panic attack and mental health breakdown in public.

The QIRC found no causal connection between stressors one, two, three, four and eight and Ms Deshong’s injury after noting serious inconsistencies in Ms Deshong’s evidence.[3] The QIRC gave significant weight to Mr Colahan’s reports and statements, Health Council’s EAP, and Ms Deshong’s behaviour after the alleged verbal abuse.

a. Ms Deshong went back to work the day after the abuse and tried greeting the abuser.

b. Ms Deshong did not make a complaint to the police station on the night of the abuse.

c. Ms Deshong worked until she fractured her shoulder. This showed that the incident on 20 March 2018 was not such that it prevented her from returning to work.

d. There is no evidence that the Health Council did not offer her time off work or counselling. She took the day off after the abuse; she was off after the floods and during the rehabilitation from her shoulder injury.

e. Ms Deshong agreed to postpone the incident report investigation until Ms Hart was fit to return to work.

f. In consultations with Mr Colahan (Health Council’s EAP), Ms Deshong expressed that the reason for her being distressed, and upset was the history of conflict she had with the management of the Health Council over her fitness to be at work due to her shoulder injury. Ms Deshong did not express any fears about her safety at the Workplace in her consultations.

Conversely, the QIRC found that stressors six and seven were significant contributing factors to Ms Deshong’s injury.[4] Furthermore, stressor five could not have arisen out of or in the course of Ms Deshong’s employment.[5]

b. Whether Ms Deshong’s personal injury arose out of or in the course of reasonable management?

The QIRC found that the Health Council’s decisions outlined in stressors six and seven were management actions because they were directed to the worker’s employment itself as opposed to action forming part of the everyday duties or tasks that a worker performs in their employment.[6]

The QIRC also noted that the reasonableness of a management action does not necessarily equate with ‘industrial fairness’ although considerations of ‘fairness’ will always be relevant.[7] Further, the QIRC stated that imperfection of a management action may not justify its characterisation as unreasonable “Management action needs only be reasonable; it does not need to be perfect.”[8] Lastly, the QIRC noted that it is the reality of the employer’s conduct that must be considered and not the employee’s perception of the employer’s conduct.[9]

Given the above principles, the QIRC concluded that while Ms Deshong may have perceived that the Health Council’s management actions were unreasonable, they were sensible in her circumstances as her physical limitation prevented her from safely undertaking the travels required by her work at Hope Vale and there were also no alternative duties in Cairns.[10]

As to the refusal of Ms Deshong’s request for safety implementations before returning to work in Hope Vale, the QIRC found that this measure was reasonable and taken in a reasonable way because the Health Council took steps to maintain her claims confidential and opened the door to communicate any hostility act after she started working at Hope Vale.[11]

Consequently, the QIRC decided that Ms Deshong’s injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment.[12]

Do you need assistance with Worker’s compensation?

If you have suffered a psychiatric or physical out of or in the course of work, or from a motor vehicle accident, speak with us.

Please contact our client engagement team to book a free appointment with us today.

This article was written by Marisol Tobon


[1] https://www.queenslandjudgments.com.au/caselaw/qirc/2021/205

[2] Deshong v Workers’ Compensation Regulator [2021] QIRC 205 [14].

[3] Deshong v Workers’ Compensation Regulator (n 1) [83], [88].

[4] Ibid (n 1) [85]- [105].

[5] Ibid (n 1) [84].

[6] Ibid (n 1) [90]- [92].

[7] Ibid (n 1) [26].

[8] Ibid.

[9] Ibid (n 1) [27].

[10] Ibid (n 1) [94]-[95].

[11] Ibid (n 1) [98]- [102].

[12] Ibid (n 1) [105].

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