The WorkCover process can be difficult for a plaintiff and all those involved, but does a plaintiff’s frustration with the WorkCover process and their dealings with them, enliven a preclusion under s 32(5)(c) of the Workers Compensation Act and Rehabilitation Act 2003 (Qld) when there are work related contributing factors at play?
In the recent decision of Dodd v Workers’ Compensation Regulator [2024] QIRC 273, Commissioner Pidgeon decided that it is not the case that “an injury which is touched by factors falling within s 32(5)(c) is automatically insulated from characterisation as an injury under 32(1) of the WCRA”.
This was because an injury which is a contributing factor will not always rise to the level of a ‘significant contributing factor’. It was found that ‘frustration with the Work Cover process’ does not serve to displace a work related significant contributing factor to a psychological injury, which in this case was the pain arising from the accepted physical injuries and pain.
In reaching her decision, the Commissioner relied on the decision in Workers’ Compensation Regulator v Mahaffey [2016] ICQ 10, which suggests that in considering s 32(5) of the WCRA, after considering all relevant evidence and weighing up the relevant factors that have been accepted as giving rise to the injury, any conduct referred to in s 32(5) does not, on the balance, displace the evidence in favour of the worker then a finding in the workers’ favour must follow. This reasoning in Mahaffey regarding the reasonable management action exclusion was extended to apply also to action taken by the insurer exclusion.
Injured workers frustrated at the conduct of the insurer or regulator do well to direct their energies to seeking legal advice and then pursuing their legal options. This is the case even where the frustration with the insurer concerned an incorrect decision to reject physical injuries that was corrected by the regulator on a review.
It is notable too that a psychological injury for the purpose of s 32 of the WCRA does not need to be a diagnosable psychiatric disorder, for example under the DSM-IV, it is enough that it be a psychological decompensation sufficient to be an ‘injury.’ In this case, obtaining a referral to a psychologist for counselling treatment was considered the date that the work related psychological ‘injury’ arose. Also, there must be a causative link between an exclusionary factor and the psychological injury or the exclusionary factor will not be relevant.
It was also considered of at least some relevance that the work related stressor was the one that caused the permanent impairment assessed by Dr Alsaee, psychiatrist, some time after the initial decision had been made by the insurer to reject the injury as arising from action taken by the insurer. A stressor that resulted in permanent impairment might be considered more significant than a stressor that did not.
Two other issues that arose which ultimately did not need to be decided where:
- How to deal with a date of injury decided on an appeal where the insurer would then be deprived of the opportunity to reject the claim as out of time because it had treated the date of injury as the one listed on the medical certificate for the application for compensation; and
- Whether an exclusionary contributing factor that did rise to the level of a significant contributing factor to psychological injury could be found not to displace other evidence in favour of the worker.