July 25, 2019

Workers Compensation

In McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7 the President of the Industrial Court of Queensland (the Industrial Court) dismissed a claimant/worker’s appeal (the appellant) in relation to a psychiatric condition alleged to have been an “injury” for the purposes of the Workers Compensation and Rehabilitation Act 2003 (the Act) arising in the workplace.

The appellant was, at least, engaged to perform tasks of a bookkeeping or accounting nature. The appellant alleged that as a result of particular conduct by the employer, some of which was alleged to be potentially criminal, she suffered a psychological or psychiatric injury. Much of the conduct the appellant complained about as being “criminal” was so characterised after being analysed by the appellant after she was employed by the employer and after being informed and influenced by her later research, investigations and later sources of information.

The claim was rejected by the Insurer.

The claim was reviewed by the Regulator and the Insurers decision was confirmed.

The appellant appealed against the Regulators decision to the Queensland Industrial Relations Commission (the Commission).

The Commission dismissed the appeal.

The appellant then appealed against the Commission’s decision to the Industrial Court.

The Industrial Court dismissed that appeal too.

At the hearing of the appeal before the Commission the appellant made allegations of fraud, misleading and deceptive conduct, and insider trading against the managing director of the employer. In these unusual circumstances the Deputy President allowed the employer to “intervene” in the appeal before the Commission, as that term (“intervention) is recognised by section 274 of the Industrial Relations Act 1999.

On appeal to the Industrial Court, the appellant argued, in a complicated way, that the employer’s intervention in the appal before the Commission was ”unfair”. This ground of appeal was dismissed.

The appellant also appealed against the Commission’s reliance on the summary of her allegations as they were put in written submissions provided by the Regulator. The appellant complained about this approach. The Industrial Court framed this ground of appeal like this:

[15] In the reasons of the Deputy President the first 18 paragraphs are taken up with: a general

introduction, the description of the background of the appellant and the employer, an

overview of the employment relationship, and the conduct of the case. After that, the

Deputy President said:

[19] The regulator's submissions deal comprehensively with the myriad

issues raised by the appellant. They are well reasoned, fair and accurate. I

accept and adopt them as my reasons for decision; although I would not

draw the inference suggested at paragraph 20. However, it is necessary that I

make some further observations.

[20] Both the appellant and the regulator accept that the outcome of this case

turns on credit. As Ms McEnearney put it in her submissions in reply: ‘It is

clear the outcome of this case rests on the credibility of the Appellant versus

the credibility of the employer, specifically the General Manager Mr Stephen

Laverick.’

[21] Largely for the reasons put by the regulator, I do not find Ms

McEnearney to be a credible witness. She, as the appellant, bears the onus

of proof to persuade me, on the balance of probabilities, that she has sustained

a compensable injury. This she has not been able to do. Although I accept,

having regard to the nature of her accusations against Mr Laverick, that the

Briginshaw standard applies, I am not even satisfied that she has made out

her case on the general standard of proof.” (emphasis added) 

If the Deputy President had gone no further than accepting, and adopting, the Regulators submissions as the reasons for the decision, then the Industrial Court would have been inclined to conclude that the Commission had erred, at least, in not providing sufficient reasons. But, after stating that the Commission adopted the submissions of the Regulator as his reasons, the Deputy President then went on to provide reasons for not accepting that the appellant was a credible witness. The Commission then examined three instances which the Deputy President found were sufficient to demonstrate why he concluded that he could not accept the appellant’s evidence (see para [16] of the judgment of the Industrial Court).

There were many other grounds of appeal – most of which were dismissed because “[as] with many of the grounds of appeal, the appellant misconstrued the Commission’s reasons.”

The decision can be found here: https://archive.sclqld.org.au/qjudgment/2019/ICQ19-007.pdf