Psychological Injury - Closing the Floodgate a little too far ...

 

In Queensland if you suffer a psychological injury arising out of or in the course of management action then it is likely WorkCover will decline the claim using the exclusion clause relating to ‘reasonable management action’ or management action ‘taken in a reasonable way’.
 

This exclusion clause is very real and has a practical effect of excluding the large majority of claims where psychological injury arises in part from unreasonable management action and in part arising out of reasonable management action. The hurdles are immense. Whilst this provision has the obvious consequence of excluding the large majority of claims relating to reasonable management action. Unfortunately the consequences do not end there.

Physical injury claims may also be affected.
 

Section 32 Meaning of Injury

  1. An injury is a personal injury arising out of in the course of, employment if the employment is a significant contributing factor to the injury.

…………

    (5)  Despite subsection (1) and (3), injury does not include a psychiatric or psychological   disorder arising out of, or in the course of, any of the following circumstances-

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

(b) The worker’s expectation or perception of reasonable management action being taken against the worker;

(c)….

Psychological Injuries caused by Physical Injuries may be caught

In the matter of Evans v Q-Comp delivered on 2 September 2011 Magistrate Lee was asked to consider whether an employee’s injuries arose out of reasonable management action and therefore were excluded. In that case, the Court found having regard to the medical evidence, it was clear that Mr Evans’ interactions at work were one of two broad causes for his decompensation. The Magistrate found there was a significant causal nexus between management actions which he found to be reasonable and taken in a reasonable way and Mr Evans’s psychological condition, sufficient to find that Mr Evan’s psychological condition is excluded from the definition of injury pursuant to section 32(5)(a) of the Act.
 

At the time the claim before the Court it related only to psychological injury arising out of or in the course of management action. However Mr Evans had an injury of a psychological nature that was also attributable to his physical injuries that he also had suffered in or about that time. Those injuries were not yet included in the Notices of Claim and therefore were not the subject of the Industrial Magistrate’s consideration at that time.
 

In His Honour’s judgment he noted the physical injuries and the psychological stressors, to quote Dr Mulholland “are each on their own a significant contributing factor to the psychological injury in this case they add up as well.”
 

Application of the exclusion Clause
 

His Honour’s found that the component ‘a significant contributing factor’ is a consideration in respect of establishing whether there’s an injury as defined in section 32(1) but not a consideration in section 32(5) for the purposes of excluding a disorder from the definition of injury. He agreed with Q-Comp’s submissions on this point.
 

Accordingly although His Honour was not called upon to make a decision with regard to those injuries, he has in fact indicated the Court’s intention should a case such as this come back before him.

Although this is an issue that has not yet been determined by a Court in Queensland, there are other cases which touch on the point in other jurisdictions tend to support that the exclusion is applicable in this scenario.
 

Queensland Cases that consider Section 32 (5)(a)

In Q-Comp v Rowe [2009] QIC17, the injured worker had nominated three stressors as causing his injuries:

  1. The results of a meeting on 22 April 2008;

  2. Replacement of older staff with less experienced staff;

  3. And pressures of working with unsuitable staff and failure by management to support him over the difficulties he was encountering.

Mr Rowe claimed that stressors 2 and 3 were irritants which did not impede his capacity to function in the workplace and that he decompensated as a result of events on 22 April 2008. The president identified that the events of 22 April and their consequences could not be separated out and treated as distinct from the impact of the “stressors” identified as stressors 2 and 3 above. His Honour upheld the Commissioner’s decision at first instance and decided the issue based on an assessment of the entirety of the evidence “that multiple stressors were present and those were the ones identified in his application and supplemented by his oral evidence…I accept these stressors arose out of or in the course of, reasonable management action taken in a reasonable way. When the events of 22 April 2008 occurred Mr Rowe’s coping mechanisms had been exhausted and his final decompensation occurred.
 

His Honour concluded the mere fact Mr Rowe was coping with multiple stressors shows the presence of more than one stressor and further, Professor James said in evidence that all three of the main stressors specified by Mr Rowe in his Workers Compensation application contributed to his load of stress. The president adopted the earlier reasons by quoting directly from the Commissioner’s judgment- “In recent times much debate has been had over when an injury is removed from the operation of section 32(1) of the Act when multiple stressors are present, one or more of which may be touched by reasonable management action taken in a reasonable way.
 

It has been the consistent view of Q-Comp in reliance of the decisions of Q-Comp v Education Queensland (2005)179 QGIG 491 and Prizeman v Q-Comp [2005]180 QGIG 481 that even if one stressor is caused by reasonable management action that will be sufficient to remove the psychological disorder from the definition of injury and section 32(1) of the Act.
 

Future direction
 

The distinguishing feature in Evans is that the psychological injuries were in part caused by physical injuries that were themselves compensable. All of the previous decisions up to that point in time were dealing with multiple workplace management issues of which some may or may not have been unreasonable.
 

Whilst Magistrate Lee at page 14 concedes that it is not necessary to conclusively determine whether the psychological injury that has developed as a result of physical injuries themselves are excluded, the subsequent decision that follows thereafter finds that the worker’s psychological injury arose out of or in the course of his employment and that his employment was the significant factor, that the actions from and on behalf of Dellgale were management action and that they were reasonable and taken in a reasonable way.
 

He held that there was a sufficient causal nexus between the above reasonable management action taken in a reasonable way and Mr Evans’s psychological injury therefore (for the purposes of section 32(5)) as the psychological injury arose out of or in the course of reasonable management action taken in a reasonable way Mr Evans has not sustained an injury defined in the Act despite there being another cause for the injury viz. his physical injuries.
 

Summary

The Industrial Court has given us insight into the direction they will take should this matter be considered more fully by the Court. It is likely that a worker who has physical injuries who then becomes embroiled in management action and thereafter suffers psychological injury or harm arising both out of the physical injuries and the management action will not be entitled to pursue a claim for common law damages for the psychological injury.


Posted: Sat, 14 Jan 2012 20:48:52 +1000 By: Amanda
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