Anderson v Workers' Compensation Regulator [2025] QIRC 361

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Anderson v Workers' Compensation Regulator [2025] QIRC 361 PARTIES: Anderson, Helen (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2023/41 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 19 December 2025 HEARD AT: Cairns HEARING DATES: 15 October 2024 16 October 2024 17 October 2024 MEMBER: Hartigan DP ORDERS: 1. The appeal is dismissed. 2. An application for costs, if any, should be made by the Workers' Compensation Regulator within 28 days. CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT FACTOR – OTHER MATTERS – where the appellant, a worker, appeals a decision of the respondent to confirm a decision of WorkCover Queensland to reject the worker's claim for compensation – where the appellant was employed as -- 1 of 28 -- 2 a nurse practitioner – where the appellant suffered a psychiatric or psychological injury which arose out of, or in the course of, her employment – where the respondent agreed that the appellant was a worker who suffered an injury and her employment was a significant contributing factor to the injury – whether the injury is excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether the appellant's injury arose out of, or in the course of, reasonable management action taken in a reasonable way – the management action was reasonable and taken in a reasonable way – the appeal is dismissed LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11, s 32 CASES: Browne v Dunn (1893) 6 R 67 Davis v Blackwood [2014] ICQ 9 Gilmour v Workers' Compensation Regulator [2019] QIRC 22 Kuenstner v Workers' Compensation Regulator [2016] QIRC 83 State of Queensland v Q-COMP [2010] ICQ 6 APPEARANCES: Mr S.B. Smith of counsel instructed by Turner Freeman Lawyers for the Appellant Mr Sapsford of counsel directly instructed by the Workers' Compensation Regulator Reasons for the Decision Introduction [1] Ms Helen Anderson, the Appellant, appeals a decision of the Workers' Compensation Regulator ('the Regulator') confirming the decision of WorkCover Queensland to reject her application for compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). -- 2 of 28 -- 3 [2] The Appellant claims that she suffered a psychological injury during her employment as a nurse practitioner with Cairns Hinterland and Hospital Health Service ('Service') at the Cairns Base Hospital ('Hospital') in the Ear Nose and Throat ('ENT') Department and that her application for compensation should be accepted. [3] The Appellant further claims that she was injured during the course of an interaction with her colleague, and that her employment was a significant contributing factor and that the interaction constituted "management action" and that management action was not reasonable nor taken in a reasonable way. Issues for determination [4] The parties agree that at all material times, the Appellant was a "worker" for the purposes of the WCR Act.1 The Respondent further accepts that the Appellant did sustain a psychological injury and that the injury arose out of, or in the course of, her employment.2 [5] It remains in dispute as to whether the Appellant's employment was a significant contributing factor to the injury, and further, whether the injury is excluded by operation of s 32(5) of the WCR Act on the basis that the injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment3 or the worker's expectation or perception of reasonable management action being taken against the worker.4 [6] Relevantly, the Appellant nominates the stressor for her injury in the following terms:5 Title Description Incident between Dr Brian Hawarden and Ms Helen Anderson in the ENT clinic's treatment room at the Cairns Hospital. The incident occurred the morning of 26 November 2021 at about 8:30am. The Appellant, an ENT nurse practitioner, was in her clinic treatment room when Dr Hawarden, a Principal House Officer, entered the room snatching the patient slips that were next to her computer. Dr Hawarden told her that she no longer had any phone or chart reviews and that she didn't have any patients in her clinic. The Appellant responded to Dr Hawarden that she did have a patient in clinic that day. The Appellant looked at her computer screen and saw that there was a cancer patient that had been allocated to her clinic. She said that Dr Hawarden I don't do cancer patients. And whilst on his way out of the treatment room Dr Hawarden turned his head and said that's why you're not seeing patients in clinic because you missed a cancer diagnosis. 1 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11 ('WCR Act'). 2 T3-15 ll 39-44. 3 WCR Act (n 1) s 32(5)(a). 4 Ibid s 32(5)(b). 5 The Appellant, 'List of Stressors', Exhibit 5 in Anderson v Workers' Compensation Regulator, WC/2023/41, 16 October 2024 ('Exhibit 5'). -- 3 of 28 -- 4 [7] It follows that the Appellant's sole stressor relates to an incident that is said to have occurred between the Appellant and Dr Brian Hawarden on 26 November 2021. The parties agree with respect to the time and location of the conversation but disagree with respect to what was said and done during the course of the conversation. [8] These discrepancies will be considered further below. The WCR Act and relevant principles [9] The onus rests with the Appellant to satisfy the Commission, on the balance of probabilities, that she was a worker who suffered a psychiatric or psychological injury that arose out of, or in the course of, her employment, and that her employment was a significant contributing factor to the injury and the injury did not arise out of, or in the course of, any of the circumstances set out in s 32(5) of the WCR Act. [10] Section 32 of the WCR Act relevantly states: 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. (2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. (3) Injury includes the following— (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation— (i) a personal injury; (ii) a disease; (iii) a medical condition, if the condition becomes a personal injury or disease because of the aggravation; … -- 4 of 28 -- 5 (5) Despite subsections (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) action by the Regulator or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way— • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment [11] While a number of factors could contribute to a worker's psychiatric or psychological injury, the worker's application for compensation will only be accepted if their employment was a significant contributing factor to their injury.6 [12] Section 32(5)(a) of the WCR Act operates to remove a psychological injury from the statutory definition of "injury" where reasonable management action is taken in a reasonable way.7 [13] In Gilmour v Workers' Compensation Regulator,8 his Honour, O'Connor VP, after considering the relevant authorities and the operation of s 32 of the WCR Act,9 held that "management action" for the purpose of s 32(5) of the WCR Act, must be something different to the everyday duties and incidental tasks of an appellant's employment. [14] In Davis v Blackwood,10 it was observed that that task to assessing management action was as follows: …The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a 6 Kuenstner v Workers' Compensation Regulator [2016] QIRC 83, [10] ('Kuenstner'). 7 State of Queensland v Q-COMP [2010] ICQ 6, [21]. 8 [2019] QIRC 22. 9 See ibid [78]-[82]. 10 [2014] ICQ 9 ('Davis v Blackwood'). -- 5 of 28 -- 6 reasonable way. Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.11 [15] In Kuenstner v Workers' Compensation Regulator,12 Commissioner Neate summarised the following relevant principles in respect of the application of s 32(5) of the WCR Act as follows: [38] There are also decisions to the effect that: (a) what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;" (b) it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result." [39] In Prizeman v Q-COMP, President Hall stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account." [40] Where there are multiple stressors alleged to be management action, the Commission may make a more "global" evaluation of management action when considering whether that management action was unreasonable or was taken in an unreasonable way (e.g. where there are were repetitive blemishes joined by subject matter, time and personality in a discordant workplace). [41] For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility for management action being taken in a reasonable way lies with the management. Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented. Language, tone of voice and demeanour are relevant to the issue whether action was taken in a reasonable way. [42] The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way …13 11 Davis v Blackwood (n 10) [47]. 12 Kuenstner (n 6). 13 Ibid [38]-[42] (citations omitted). -- 6 of 28 -- 7 [16] The Appellant submits that the injury arose out of management action and that action was not reasonable nor taken in a reasonable way. [17] Accordingly, the task is to identify and assess the management action taken and to determine whether it was reasonable and whether it was taken in a reasonable way. [18] It is not in dispute that the incident of 26 November 2021 constituted management action. [19] The Respondent submits that the conduct of Dr Hawarden in providing the Appellant with "further education" on 26 November 2021 constituted reasonable management action.14 [20] The Respondent submits that, at all times, the Respondent engaged in reasonable management action in:15 (a) the delineation of the duties capable of being undertaken by the Appellant; (b) the provision of information to the Appellant as to her appropriate "scope of duty"; and (c) providing the Appellant with information as to a potential misdiagnosis. The parties' contentions [21] The Appellant contends that she suffered a psychological injury arising out of, or during the course of, her employment. The Appellant further contends that the incident with Dr Hawarden was a significant contributing factor to her psychological injury, and accordingly, her injury was caused by management action which was not reasonable nor taken in a reasonable way. [22] The Appellant contends that the incident on 26 November 2021 was a significant contributing factor in the development of her injuries. [23] After the incident on 26 November 2021, the Appellant contends that she was: (a) demoted instantly and without warning, from the specialist position she had occupied for a substantial period without incident; 14 The Respondent, 'Respondent's Written Submissions' Submission in Anderson v Workers' Compensation Regulator, WC/2023/41, 19 November 2024, [29] ('Respondent's Written Submissions filed 19 November 2024'). 15 The Respondent, 'Amended Statement of Facts and Contentions', Exhibit 1 in Anderson v Workers' Compensation Regulator, WC/2023/41, 15 October 2024. -- 7 of 28 -- 8 (b) told she had missed a cancer diagnosis which: (i) made her believe that she had put a patient's life at risk; (ii) was factually untrue because cancer diagnosis was not part of her scope of work and had not been missed by her; (iii) was an over-statement of the appellant's role in the situation because the patient had gone on to receive treatment almost immediately and had reasonable prognosis, which Dr Hawarden knew, but did not tell the Appellant in the exchange; (c) publicly humiliated in front of patients and made to feel incompetent; (d) not afforded procedural fairness or due process in relation to her position and responsibilities changing; (e) not offered training or further discussions relating to the alleged "missed diagnosis"; (f) not provided a formal meeting nor with any follow up in writing of the changes; (g) delivered the news in a demeaning and blaming way; and (h) delivered the news publicly and without prelude. [24] The Appellant contends that the incident on 26 November 2021, amounts to more than a mere blemish on the part of the employer because of the following: (a) the seriousness of the allegations made about the Appellant's performance and competence; (b) the instant and severe disciplinary action (demotion) that was taken; and (c) the significant repercussions it had on her job description and position within the department and wider hospital and in relation to patients. [25] The Regulator contends the injury was caused by reasonable management action taken in a reasonable way, and consequently, it is excluded as an "injury" by the operation of s 32(5) of the WCR Act. -- 8 of 28 -- 9 [26] The Regulator further states that the management action arose following the appointment of Dr Gavin Quail to the Hospital's ENT Department ('the Department') as consultant on 1 August 2021, following which he oversaw the following changes to the Department:16 (a) disbanding "Registrar Clinics" (previously run by nurses) and returning to the standard practice of running clinics with consultants in-charge; and (b) a directive that phone reviews were no longer conducted by whoever was available and this task became the duty of the two Principal House Officers ('PHOs') (of which Dr Hawarden was one) or Dr Quail due to phone reviews being inherently dangerous and difficult clinical encounters where incorrect decisions can easily be made without careful consideration of each case. [27] The Regulator contends that the Appellant had been made aware of the changes listed above following Dr Quail's appointment and was aware of the changes to her clinical practice occasioned by the changes implemented by Dr Quail. [28] The Regulator denies that Dr Hawarden said words to the effect of, "you are not allowed to see patients anymore because you missed a cancer diagnosis" and "you don't have any patients in your clinic anymore" on the basis that: (a) the Appellant was already aware of the changes made to the ENT Department by Dr Quail; (b) the Appellant was able to see patients within her scope of practice; (c) the clinic operated by the Appellant was not closed when she left the workplace and was only temporarily suspended when she did not return pending the appointment of a qualified staff member; and (d) the Appellant was never accused of a misdiagnosis but rather advised that a misdiagnosis had been made in relation to an "out of scope" task undertaken by the Appellant. [29] The Regulator further states that the Appellant left the workplace following the advice of the incident. The evidence [30] The Appellant gave evidence on her own behalf and relied further on the evidence of Consultant Psychiatrist, Dr Mary-Ellen O'Hare. 16 Respondent's Written Submissions filed 19 November 2024 (n 14) [16]. -- 9 of 28 -- 10 [31] The Regulator relied on the evidence of Dr Quail and Dr Hawarden. [32] The Appellant commenced employment permanently as a qualified nurse practitioner on 4 August 2021 after completing specialist training at the Hospital. Prior to this, the Appellant was practicing as a candidate nurse practitioner for two years and had worked in ENT as a registered nurse since approximately 2010.17 [33] At the relevant time, the Appellant was the only qualified ENT nurse practitioner in Queensland.18 Her responsibilities were more complex than that of a registered nurse, and included: (a) independently performing physical assessments (limited); (b) ordering diagnostic test results (limited); (c) interpreting test results; (d) initiating referrals to other health care providers; (e) prescribing specific medications; (f) administering specific therapies; and (g) rebooking patients for follow-up consultations with either herself or an ENT consultant. [34] Since 2018, the Appellant had her own patient load and clinic within the Hospital. Patients were triaged within the Department by PHOs who would, upon receipt of a GP referral, categorise patients into categories 1, 2 or 3 depending on urgency and complexity of their presentation. [35] As a nurse practitioner, the Appellant would see routine, high-turnover patients with less complex presentations. Her case load included patients presenting with ear pain (otalgia), hearing loss, routine reviews of post-operative patients, patients who had undergone radiotherapy treatment, and preliminary tonsillectomy candidate consultations. The Appellant did not see any Category 1 patients, Category 1 patients were considered "high-risk" and were triaged to ENT consultants. [36] Upon review of the referral, PHOs would allocate patients to the Appellant by placing patient slips in her workload tray. 17 T1-22 ll 31-33. 18 T1-23 ll 10-11. -- 10 of 28 -- 11 [37] If the Appellant was allocated a patient who she considered presented with a condition outside of her scope of practice as a nurse practitioner, she would refer the patient to a consultant or a registrar if there were no consultants on duty. [38] It is apparent that the Appellant has dedicated many hours to her career and in particular in gaining her specialist qualification as a nurse practitioner. [39] At the time of the incident on 26 November 2021, the staff structure of the ENT Department, in order of seniority, was as follows: (a) two fly-in fly-out consultants and one consultant who worked in the Department for 16 hours a month; (b) one supervised consultant, Dr Quail; (c) two PHOs, including Dr Hawarden; (d) two interns; (e) the Appellant; and (f) registered nurses. [40] The Appellant concedes that she was subject to the authority and direction of doctors at the Hospital, including Dr Hawarden.19 [41] At the relevant time, Dr Quail was considered to be the most senior staff member as he was the only full-time ENT consultant within the Department, despite being technically under the supervision of the Brisbane based (fly-in fly-out) consultants.20 [42] Dr Quail instigated changes to the manner in which work was distributed soon after his commencement. Essentially, Dr Quail re-introduced a consultant-led clinical model. [43] It was Dr Quail's evidence that, prior to 26 November 2021, he oversaw changes to the running of the ENT Department in the following ways:21 (a) the disbanding of Registrar Clinics (previously run by nurses) and the return to a normal way of running clinics with consultants always being there; and (b) phone reviews were no longer conducted by whoever was available and this task became the duty of the two PHOs of which Dr Hawarden was one or Dr Quail. 19 T1-32 ll 5-23. 20 T1-23 ll 33-40. 21 Respondent's Written Submissions filed 19 November 2024 (n 14) [16]. -- 11 of 28 -- 12 [44] It was Dr Quail's evidence that he was phasing out phone reviews for staff, such as the Appellant, as he said phone reviews were "very difficult"22 and that "not having a patient in front of you is a much harder situation"23. [45] Further, Dr Quail gave evidence that he did not have a meeting with the Appellant to discuss the changes in respect of the process for phone reviews. Instead, his evidence was that: DR QUAIL: … I didn't sit down with Ms Anderson and say that she's not doing phone reviews. We24 just sort of [started] doing the phone reviews ourselves more – being more involved in the phone reviews ourselves, and that was what we wanted to happen. I mean, I wanted to be involved in every one of those.25 [46] Dr Quail's evidence was that he considered that the changes to the phone reviews may have indirectly affected the Appellant's role but they were not directed at the Appellant. He explained as follows: DR QUAIL: So clinic patients are assigned to people. The patients would be assigned to me in my clinic, and then they would be seen by my PHOs, the – the more junior doctors or Ms Anderson, but my name is the name that is there on the list, so if I then – um – am saying that a patient that's on my list of patients to see for that day is going to be seen by myself, or someone that I've delegated to, that's the way I see it. I don't see it as, like, I am taking something away from someone when it was actually my name on the list to start off with.26 [47] Dr Quail's evidence was that he was happy with the Appellant's work and that there were no "performance issues" with respect to the Appellant's work.27 [48] Dr Quail was not involved in, nor had any direct knowledge of, the incident on 26 November 2021. [49] On the day of the incident, following a routine hospital ward round, the Appellant states that she returned to her clinic to sort through her clinic slips in preparation for the day. It was the Appellant's practice that she would commence patient consultations in the clinic following the morning ward round. 22 T2-11 l 19. 23 T2-11 ll 19-20. 24 The consultants. 25 T2-14 ll 25-29. 26 T2-21 ll 11-17. 27 T2-15 ll 2-10. -- 12 of 28 -- 13 [50] The Appellant's evidence is that she noticed a paediatric patient in the waiting area outside her clinic whose illness fell outside of her scope of practice. The Appellant sent a "WhatsApp" message to the ENT Department's group chat alerting the PHOs and interns that the patient was waiting to be seen in the clinic. [51] The Appellant's evidence is that Dr Hawarden responded to the message stating "on my way" and he then made his way down to the Appellant's clinic to attend to the paediatric patient. [52] The Appellant gave evidence regarding the conversation as she contends it occurred between herself and Dr Hawarden. The Appellant alleges that, on arriving in the Appellant's clinic room, Dr Hawarden "snatched" the papers (being the patient slips) out of her hands and said: THE APPELLANT: "You're not allowed to do these anymore and you've got no patients in your clinic", and I said, "Well, no, I've got one in my clinic". So when I opened it, I said, "This is a cancer patient. I don't do cancer patients." And with that he just walked out and said, "Yes, that's why you're not allowed to do them anymore, you're not allowed to do them because you missed a cancer", and walked out.28 [53] The Appellant's evidence was that the whole interaction took "30 seconds, a minute maximum".29 [54] The Appellant gave evidence that she was not provided a further explanation and that Dr Hawarden was walking out the clinic door as he spoke to her. According to the Appellant, the patients in the waiting area may have been able to hear this exchange. [55] Under cross-examination, the Appellant gave additional evidence about the conversation. Relevantly, she stated that after being told by Dr Hawarden that there were "no patients in [her] clinic", she said: THE APPELLANT: I pulled it up on the computer and said, "I've got a patient", and it wasn't to do with cancer or anything. [Dr Hawarden] said I didn't have patients in my clinic and I said, "Yes, I do. There's one." And I said to him, "This is a cancer patient, they don't come in my clinic", and that's when he walked out and said, "That's why you've not got - you're not allowed to do it because you missed a cancer."30 28 T1-28 ll 2-6. 29 T1-28 l 11. 30 T1-40 l 45 – T1-41 l 1. -- 13 of 28 -- 14 [56] The Appellant could not recall whether the interaction happened before or after the consultation with the patient. It was Dr Hawarden's evidence that the incident occurred after the consultation and before he returned to the theatre.31 [57] Notwithstanding the Appellant's evidence that she had seen on her computer and then queried with Dr Hawarden the allocation of a cancer patient to her at the time of the incident, the Appellant maintains that she was never provided with any further explanation as to who the patient Dr Hawarden was referring to was or the circumstances in which she "missed a cancer" diagnosis. The Appellant states that she has since presumed the identity of the patient referred to by Dr Hawarden after reviewing her electronic patient files, however, she is not certain. Further, it was the Appellant's contention that Dr Hawarden never looked at the computer. [58] The Appellant gave evidence that she did not see any patients for in-clinic consultations for the rest of the day and instead began her usual preparation for Saturday's clinic. The Appellant states that she went to lunch by herself, cleaned up the clinic, felt uncertain about what had just happened and went home for the day at about half-past five. [59] The Appellant's states that she suffered a significant "mental decompensation" later that evening as a result of the incident and its perceived outcomes. The Appellant has not returned to work at the Hospital since 26 November 2021. [60] Following the incident, the Appellant completed an incident report which was tendered into evidence.32 In the incident report, the Appellant describes the interaction with Dr Hawarden as follows: Commenced wardround [sic] at 0730 with Consultant Dr Gavin Quail, Dr Bryan [sic] Hawarden, Dr Richard Tjahjono & Dr Anthony Pham - nil problems. Medical staff then went to operating theatre and I returned to clinic. When in clinic a few patients for registrar clinic arrived and I contacted medical staff via text at 0821to advise that patients had arrived. Bryan arrived and advised me that I was no longer allowed to do the phone/chart reviews and I had no patients in my clinic, I stated yes I did and when I opened the patient file and read the last ENT record seen that it was for a cancer patient I stated that I did not participate in reviewing cancer patients and at this time Dr Hawarden walked out the treatment room commenting that I had seen this patient for ear pain and had missed his cancer. This was the first I heard of this incident. I was concerned that this issue had not been brought up in a more professional manner and not the offhanded way it was. I completed my day assisting where possible, but the offers were ignored. 31 T1-45 l 16. 32 The Respondent, 'Staff worker incident form', Exhibit 3 in Anderson v Workers' Compensation Regulator, WC/2023/41, 15 October 2024 ('Exhibit 3'). -- 14 of 28 -- 15 I have since discovered on reviewing my notes that the patient in question I did review in clinic for ear pain where I diagnosed NAD ear, allergic rhinitis and on examination of oral cavity observed a newly removed tooth cavity which I have been advised since is where the cancer is situated, and his pain was improving since removal of tooth. I booked him in for phone review to ensure pain had resolved. On reflection I feel that I have been excluded by some members of the medical staff since commencing this role which I have managed in a professional manner. My role has eroded especially over the past year and this last episode has left me extremely anxious, depressed and questioning my ability to practice. [61] Dr Hawarden's evidence differs somewhat to the Appellant with respect to the incident on 26 November 2021. [62] Dr Hawarden recalled that the morning of 26 November 2021 was a theatre day and he, together with Dr Quail, Dr Woodfield and another registrar were in theatre. Dr Hawarden states that he was free so went down to the clinic to pick up the patient. He states he saw the patient in his clinic room, conducted the consultation and then sent the patient on their way once the consultation was complete. [63] Dr Hawarden was aware that the Appellant was in her clinic room, so he stated that he touched base with her before he headed back up to theatre. Dr Hawarden stated the Appellant asked him to give her a hand with trying to explain why she had a phone review booked into her clinic for a patient who had throat cancer. [64] Dr Hawarden's evidence was that in order to assist the Appellant he had to look at the patient's electronic file on the Appellant's computer and work backwards. Given that the details of this exchange are in dispute reference is made to the following extract of Dr Hawarden's evidence: DR HAWARDEN: So I went into the treatment room/her clinic room, sat down on the computer and started to kind of click through the patient's electronic file. Entries are in chronological order and I sort of worked backward for the most recent, which made it appear as if the patient was currently in the work-up pipeline, having been diagnosed with cancer. There's a surgical procedure and a couple of investigations and consults that generally happen for everyone in the pipeline. And it wouldn't make sense for her to have a phone review for that kind of patient. As I went further back in the chart, it became apparent that the patient had been referred in a few weeks prior by a general practitioner who had scanned the patient's neck, detected a tumour in the neck on one of the sides. And then, as I went further back, I found an entry from Ms Anderson. She had seen the patient in her clinic about six weeks prior, it had been referred in a week or two earlier by another general practitioner with a unilateral ear pain, otalgia. I had triaged that referral on to Ms Anderson's -- 15 of 28 -- 16 clinic. She'd seen the patient, conducted the consult and the exam, and sent the patient away with a planned phone review at six weeks, which is what was - which would have come up and was due that day. As I was kind of working through the story, it became apparent that this patient's ear pain may have been related to the throat cancer and may not have been related to any pathology in the ear. Her examination findings didn't document any significant ear pathology to explain the ear pain. And so I was - kind of explained to her that sometimes ear pain can be a throat tumour, as was the case in this patient, and it's important to watch out for these because they do kind of catch you unawares. The timeline was sufficiently compressed between the first referral and the second referral that there wasn't any kind of negative outcome for the patient. And the patient was now in an appropriate - was in the appropriate pathway to get treatment. Having kind of solved the mystery of why there was a phone review for a cancer patient in Ms Anderson's clinic, I then went up to leave and head back up to theatre. And then I remembered that Dr Quail had told me that morning that phone reviews were now meant to be conducted by himself or the registrars and I just let Ms Anderson know that, just because Dr Quail felt that the phone reviews were getting a bit blended and all kind of mixed, and so they were ending up in mixed piles, it was just safer that only the senior clinicians would conduct them. MR SAPSFORD: And that excluded Ms Anderson from that activity? DR HAWARDEN: From phone reviews, yes. MR SAPSFORD: Yes. What about the rest of her job? DR HAWARDEN: So her clinic was going to continue as per normal.33 [65] Relevantly, Dr Hawarden's evidence was that he explained to the Appellant that she would no longer be conducting phone reviews following a decision made by Dr Quail that phone reviews would only be conducted by the consultants and PHOs. [66] It was Dr Hawarden's evidence that he was not aware of the cancer diagnosis prior to the incident. His evidence was that he discovered the "missed cancer diagnosis" in "real time looking through the computer, reading the chart, discovering what had happened."34 This was a process he said occurred together with the Appellant. 33 T1-45 l 20 – T-1-46 l 7. 34 T1-49 ll 41-42. -- 16 of 28 -- 17 [67] Dr Hawarden states that as he was going through the patient's history, he discussed with the Appellant how you might check that "there's not cancer going on here"35. It was Dr Hawarden's evidence that in the Service there was a lot of "opportunistic teaching" where someone with more experience in the workplace would "point [a mistake] out to you" and "teach".36 The medical evidence [68] On 14 March 2022, the Appellant's general practitioner, Dr Heiner, issued a workers' compensation medical certificate diagnosing the Appellant with severe anxiety, major depressive disorder and post-traumatic stress disorder "from incident at work". [69] It is not disputed that the date of injury was 17 December 2021 when the Appellant first attended on her general practitioner.37 [70] Dr O'Hare, Consultant Psychiatrist, was called by the Appellant to give evidence. Dr O'Hare also prepared a report dated 27 July 2023 which was tendered into evidence.38 [71] Dr O'Hare identified the matters that she took into account in formulating her opinion which included, inter alia, the following matters: Ms Anderson is a 62-year-old separated registered nurse (RN) and Nurse Practitioner in ENT, who has been off work due to psychological injury sustained on 26 November 2021 in her workplace at Cairns Hospital. A missed cancer diagnosis led to cessation of her right to practice in her usual role and she was informed by a junior medical staff member in an unconfidential clinical setting without any explanation or forewarning. No information was or has been supplied by her line manager regarding these events. She has been unable to return work since that day. Ms Anderson developed an adjustment disorder with mixed anxiety and depressed mood which progressed to a major depressive disorder and post-traumatic stress disorder by mid 2022 requiring four-month admission to psychiatric hospital due to suicidal ideation. She continues to receive treatment from psychiatrist, psychologist and General Practitioner and takes antidepressant medication. She has residual symptoms, has not had adequate trials of other medications including antidepressants, mood stabilisers and antipsychotics or transcranial magnetic stimulation to try and remit her conditions. She has not had eye movement desensitisation and reprocessing for her post-trauma symptoms which is also indicated. Past episodes of anxiety required a 2-week period of sick leave in 2019 for another work-related stressor treated with brief psychological intervention and avoidance.39 35 T1-48 l 1. 36 T1-49 ll 11-12. 37 T2-7 ll 6-7. 38 The Appellant, 'Medicolegal Report by Dr O'Hare', Exhibit 4 in Anderson v Workers' Compensation Regulator, WC/2023/41, 16 October 2024 ('Exhibit 4'). 39 Ibid [58]. -- 17 of 28 -- 18 [72] Dr O'Hare also referred to and relied on pre-existing vulnerabilities arising from the history of the Appellant's personal and professional relationships. This is referred to in the following terms: 59 … Conflict avoidance, masochistic and strong dependency traits and high work ethic have seen her work through long periods of workplace toxicity in former roles as nurse unit manager 5 years (NUM) and scrub nurse both at Cairns Hospital and Ramsay Hospital where she was exposed to bullying and unprofessional behaviour by doctors in her team. No mediation was sought nor complaints made. Avoidance by resignation or relocation has been her major defence historically with this occurring from the nurse unit manager (NUM) position in 2019, and the scrub nurse position in Cairns Hospital. Strengths are evident in her occupational progression to valued role of nurse practitioner through further study which also exposed her to higher levels of responsibility and risk. The missed diagnosis is an experience from which she finds it hard to recover. Tolerance of misbehaviour in the teams with which she has worked throughout her career decompensated in the setting of perceived humiliation and extreme reputational damage as occurred in the interchange with the PHO. The lack of usual HR procedural fairness, opportunity to be informed in a supported, confidential setting by peers reflects the uniqueness of her role and the lack of procedures in place to manage this unique situation. The employer appears to have failed to act in a reasonable way in informing her of her issues or the consequences for them. 60 Precipitants to the onset of illness include the missing of a diagnosis, and the humiliation inflicted when she was informed in a public setting of her professional error and consequent alteration to her role by a team member who is not her line manager and whose skills in dealing with sensitive information were compromised by his own issues and lack of training.40 [73] Dr O'Hare diagnosed the Appellant as suffering from major depressive disorder and post-traumatic stress disorder. [74] Dr O'Hare considered the history taken from the Appellant and notes that the Appellant had a prior psychiatric condition as follows: In 2019, she had an adjustment disorder and required two weeks off work which led to resolution of symptoms. Telephone contact with a psychologist occurred after symptoms had abated.41 [75] Dr O'Hare opined that the development of the Appellant's psychiatric condition relevant to this appeal was a combination of: (a) the events of 26 November 2021; and 40 Exhibit 4 (n 38) [59]-[60]. 41 Ibid [64]. -- 18 of 28 -- 19 (b) other work-related events occurring prior to 26 November 2021 which either individually or in combination were significant.42 [76] Dr O'Hare's report concluded that the employment was a significant contributing factor for the development of the condition as follows: Employment is the significant contributing factor in the development of the conditions. The exposure to the PHO occurred during a workday, in a clinic, in the work setting in which her role occurred and in dealing with patients of the ENT service. The PHO was passing on information he may not have realised she was not aware of. The line manager and nursing employment HR staff failed in their duty to inform her of her error and the consequences of that error in a timely fashion which would have allowed her to more appropriately prepare for and react to the serious nature of those facts. All these factors are work-related.43 [77] In addition to her report, Dr O'Hare also gave oral evidence. [78] Dr O'Hare's evidence under cross-examination was that the "missed cancer diagnosis" was not the most important part of the injury. Her evidence was: DR O'HARE: I don't believe that the missed cancer diagnosis formed the most important part of the injury. I think the most important part of the injury was the mode by which she was told of her cessation of her job by a junior medical staff member who was not her line manager and the humiliation that went along with that.44 [79] Further, under cross-examination Dr O'Hare confirmed that the Appellant informed Dr O'Hare that her interaction with Dr Hawarden was such that she was informed of a missed cancer diagnosis and that she was no longer able to practice in her usual role.45 [80] It follows that Dr O'Hare's opinion as to the cause of the injury is premised on the following matters: (a) that the Appellant missed a cancer diagnosis; (b) that the Appellant's line manager and HR staff failed in their duty to inform her of her error in a timely way; and (c) that the Appellant was told of the cessation of her job by a junior medical staff member who was not her line manager and the humiliation that went along with that. 42 Exhibit 4 (n 38) [66]. 43 Ibid [69]. 44 T2-5 ll 32-36. 45 T2-6 ll 1-6. -- 19 of 28 -- 20 [81] Dr O'Hare considered that the action identified in sub-paragraph (c) above to be "the most important part of the injury". Evidentiary findings [82] In order to identify the relevant management action for the purpose of determining whether the injury is excluded by operation of s 32(5) of the WCR Act, it is necessary to make several factual findings to the extent to which there is disparity in the evidence between the witnesses with respect to the action nominated by the Appellant in the stressor. [83] It is apparent that key components of the conversation between the Appellant and Dr Hawarden are in dispute with respect to the relevant stressor. The Appellant relies on the following facts: (a) Dr Hawarden entered the Appellant's clinic room and snatched the patient slips that were next to her computer; (b) Dr Hawarden told the Appellant that she no longer had any phone or chart reviews, and she didn't have any patients in her clinic; (c) the Appellant responded to Dr Hawarden that she did have a patient in clinic that day; (d) that after looking at her computer screen she saw that a cancer patient had been allocated to her clinic and the Appellant said to Dr Hawarden, "I don't do cancer patients"; and (e) whilst Dr Hawarden was on his way out of the room, he turned his head and said, "that's why you're not seeing patients in clinic because you missed a cancer diagnosis". [84] With respect to the patient slips, the Appellant's position has been variously that when Dr Hawarden first walked into the room, he: (a) snatched the patient slips; or (b) snatched the patient slips out of her hand; or (c) came in and he "just took the sheets off the table"46. 46 T1-27 l 46. -- 20 of 28 -- 21 [85] The Appellant made no reference to the documents being taken by Dr Hawarden in the incident report at all.47 [86] It is apparent from the above that the Appellant's position with respect to Dr Hawarden taking the patient slips has been somewhat inconsistent. [87] Dr Hawarden's account of the conversation did not include any reference by him to taking or "snatching" the patient slips either from the Appellant's hand or from her desk. Further, it was never put to Dr Hawarden under cross-examination that he took or "snatched" the patient slips from the Appellant. [88] Given the inconsistency of the Appellant's evidence and the failure to challenge Dr Hawarden under cross-examination48 with respect to snatching the patient slips, I find that Dr Hawarden did not take nor snatch, whether from the Appellant's hand or desk, the patient slips. [89] The Appellant's further evidence of the conversation appears to be premised on a presumption that Dr Hawarden: knew that the Appellant had a phone consultation booked in with a patient that day; knew the identity of the patient; knew the patient's medical history and current condition; that he formed a view that the Appellant had missed a cancer diagnosis with respect to that patient; and further, knew of and had considered these matters without the need to have reference to the Appellant's computer to check the patient's file. [90] That is, when it is alleged that Dr Hawarden said the words, "you are not allowed to see patients anymore because you missed a cancer diagnosis" and "you don't have any patients in your clinic", it can be inferred that he knew the identity of the patient, their medical history and condition. [91] As noted above, it was the Appellant's evidence that Dr Hawarden made the alleged comments as he was walking out the door and without any detailed reference to the patient's electronic file. Under cross-examination, the Appellant maintained that Dr Hawarden did not look at her computer and did not go through the patient's history with her to work out why a phone consultation with a cancer patient was scheduled with her that day. [92] The cross-examination of Dr Hawarden was also premised on the basis that Dr Hawarden was aware of that particular patient and the Appellant's prior attendance on that patient prior to the incident.49 However, such matters were never directly put to him. 47 Exhibit 3 (n 32). 48 Browne v Dunn (1893) 6 R 67. 49 T1-48 ll 32-47. -- 21 of 28 -- 22 [93] Conversely, Dr Hawarden's evidence was that in order to assist the Appellant to work out why she had a phone consultation with a cancer patient he needed to look at the patient's electronic file and step backwards through the chronology. [94] Dr Hawarden's evidence was that he became aware of the patient and their history only as he was stepping back through the chronology on the patient's electronic file with the Appellant. [95] Dr Hawarden's evidence under cross-examination in this respect was as follows: MR SMITH: She'd asked you what was going on? DR HAWARDEN: Yes, if I could make sense of why this had occurred. MR SMITH: You told her that she'd missed a cancer diagnosis? DR HAWARDEN: No, as I worked through the chronological record, the story came out and I was like, "Oh, I can see what's happened here. This patient's got referred to you. The ear pain in that setting was probably the throat cancer. But fortunately it's been picked up by the GP on the scan. You need to watch for these because they could - they can turn up like this." MR SMITH: Ms Anderson never got out of her chair in front of the computer? DR HAWARDEN: I drove that computer so I have a feeling I was sitting in the chair or there was a second chair.50 [96] I accept Dr Hawarden's evidence with respect to the steps he took to assist the Appellant to work out why she had a phone consultation with a cancer patient to be more plausible. It is more probable than not that a busy PHO rostered in theatre would not be aware of the identity, medical history and condition of a patient that the Appellant had listed in her clinic that day as a phone consultation. [97] I further accept Dr Hawarden's evidence that he was unaware of the details of the patient's medical history until he chronologically stepped back through the history with the Appellant at the time of the incident. [98] It follows that it was within this context that the Appellant and Dr Hawarden discovered that, before any cancer diagnosis was made, the patient had attended on the Appellant's clinic and had been seen by the Appellant. 50 T1-47 ll 25-35. -- 22 of 28 -- 23 [99] It follows that I find that the Appellant has not established, that prior to the incident, Dr Hawarden was aware of that particular patient and their medical history, and consequently, reviewed the patient's medical history with the Appellant. [100] The Appellant's case is further premised on the basis that it is alleged that Dr Hawarden accused the Appellant of missing a cancer diagnosis. [101] The allegation was expressly denied by Dr Hawarden under cross-examination.51 [102] Following this evidence there was further cross-examination of Dr Hawarden as follows: MR SMITH: You never discussed with her how it was missed. I'll be specific, how she missed it? DR HAWARDEN: I would have said it's always worth a look in the back of the throat. MR SMITH: So you did discuss with her, you say, how she missed the cancer diagnosis? DR HAWARDEN: Discussed how you can check to make sure that there might not – that - what you can do to just reassure yourself that there's not cancer going on here. MR SMITH: Was there a missed cancer diagnosis? DR HAWARDEN: Without having examined the patient at that time, there might not have been clinically detectable signs during that consult. MR SMITH: Sorry, I'm asking are you aware there was a missed cancer diagnosis? DR HAWARDEN: The patient would have had cancer at the time. Whether that was clinically detectable on that day, it's difficult because it wasn't examined.52 [103] This extract from the cross-examination identifies how the questions being put to Dr Hawarden are premised on the basis that the Appellant missed a cancer diagnosis. In response, Dr Hawarden advises that the patient's cancer may not have been clinically detectable on the day of the consultation with the Appellant.53 51 T1-47 l 28. 52 T1-47 l 45 – T1-48 l 8. 53 T1-48 l 4. -- 23 of 28 -- 24 [104] Dr Hawarden's responses in the extract above confirm that: (a) he provided advice to the Appellant about what checks might be undertaken to "reassure yourself" there was no cancer; and (b) he is unable to conclude whether the cancer was clinically detectable on the day that the Appellant attended on the patient. [105] Consequently, I do not accept the contentions that Dr Hawarden accused the Appellant of missing a cancer diagnosis. [106] Whilst it is apparent from the Appellant's evidence that she was concerned to have potentially missed a cancer diagnosis, I find on the basis of Dr Hawarden's evidence, which is accepted, that no such allegation was ever put to her. [107] Under cross-examination, the Appellant's concern in this regard is noted from the following exchange: MR SAPSFORD: It wasn't up to you to decide whether it was a cancer or the type of cancer, but it was incumbent upon you to refer the matter to Dr Quail or one of the [PHO]s? THE APPELLANT: I don't understand what this is all about, because nobody - I still don't know what patient I've missed the cancer, or nobody has ever told me about it. Is that just the case, why was it not six weeks ago somebody took me and said, "You did wrong". You're making me feel as though I did wrong, and nobody's spoken - I'm sorry. MR SAPSFORD: Ms Anderson, forgive me. That was not my intention. My intention was simply to clarify from - if you need a break, say so. My intention was simply to clarify from the evidence you've given to my learned friend what it was you did and what it was you then did if you discovered something was out of the ordinary.54 [108] It is apparent from this evidence that the Appellant is operating on the assumption that she missed a cancer diagnosis. This assumption then operates to inform her perception of the remaining interaction with Dr Hawarden. [109] It is clear from the Appellant's stressor that she contends that she was told that she was "not allowed" to see patients in her clinic anymore as a consequence of the alleged "missed cancer diagnosis". In this regard, the Appellant conflates the two issues of the patient's diagnosis and the reorganisation of work by Dr Quail. The Appellant suggests 54 T1-34 ll 39-49. -- 24 of 28 -- 25 that the reorganisation of work (or as she describes it "not allowing her to see patients") as action taken against her for missing a cancer diagnosis. [110] The Regulator disputes that the Appellant was advised that she was not allowed to see patients in her clinic. This position is consistent with the evidence of both Dr Quail and Dr Hawarden. [111] Dr Quail's evidence was that he had introduced operational changes to the manner in which there was a return to a consultant-led clinical model. Although, he stated that there were no actual steps taken to change any of the Appellant's role. [112] Relevantly, he had determined that he wanted to be involved in the phone reviews going forward and was phasing out staff, such as the Appellant, from conducting phone reviews. [113] The introduction of these changes was being phased in and had commenced prior to 26 November 2021. [114] It was Dr Hawarden's evidence that having spoken to the Appellant about the cancer patient he then remembered that Dr Quail had advised him that morning that phone reviews were to be conducted only by Dr Quail and the registrars. He explained that it was a decision that had been made by Dr Quail. [115] Dr Hawarden's further evidence was that the Appellant's clinic was going to continue as per normal. On this basis, I do not consider that a decision had been made that the Appellant was "not allowed" to see patients. [116] It was not put to Dr Hawarden during cross-examination that he told the Appellant that she was not allowed to see patients anymore. Rather, it was put to Dr Hawarden that he told the Appellant she was not doing phone reviews to which Dr Hawarden agreed. It was further put to Dr Hawarden that he also told the Appellant she was not doing chart reviews to which he responded, "I think it probably just was for phone reviews".55 [117] I accept the evidence of Dr Quail and Dr Hawarden that a prior decision had been made that Dr Quail and the registrars would conduct the phone reviews and that Dr Hawarden conveyed this decision to the Appellant as he was leaving the room. I consider it to be consistent with this, that Dr Hawarden advised the Appellant about the changes to the phone reviews only. Given these matters, I do not accept the Appellant's evidence that she was told that she was not allowed to see patients in clinic anymore. [118] Further, I do not accept that the changes to the phone review model were introduced because of the alleged "missed cancer diagnosis". 55 T1-47 ll 10-11. -- 25 of 28 -- 26 [119] It follows, from these findings, that I do not accept that the words and actions attributed to Dr Hawarden on 26 November 2021 in the Appellant's nominated stressor or in the Appellant's Statement of Facts and Contentions are established on the evidence. Consideration [120] The following matters remain to be determined in this appeal: (a) whether the injury arose out of, or in the course of, the employment, where employment was a significant contributing factor; and (b) whether the injury arose out of management action taken in a reasonable way. Significant contributing factor [121] As discussed above, Dr O'Hare provided an opinion based on, inter alia, the history provided by the Appellant which included that "[a] missed cancer diagnosis led to cessation of her right to practice in her usual role and she was informed by a junior medical staff member in an unconfidential clinical setting without any explanation or forewarning". [122] Further, and as noted above, Dr O'Hare's evidence was that she considered that the most important part of the injury was the mode by which the Appellant was told of the cessation of her job. [123] However, the history relied on by Dr O'Hare does not accord with the factual findings made in this appeal with respect to the interaction between the Appellant and Dr Hawarden on 26 November 2021. Relevantly, it has not been found that the Appellant was told she missed a cancer diagnosis nor has it been found that her job had ceased. [124] It is, however, accepted by the Commission that the Appellant became most concerned when she became aware of the patient's history and her prior consultation, before the cancer diagnosis, with that patient. [125] The Regulator has, properly, accepted that as a result of the Appellant's perception of the consequence of the interaction with Dr Hawarden that the employment may be considered to be a significant contributing factor to the injury. [126] In this regard, the Regulator submitted: 9. That perception as conveyed to Dr O'Hare led Dr O'Hare to conclude the precipitants to the onset of the Appellant's illness included: (a) A missed diagnosis; (b) Perceived humiliation with respect to the interaction with Dr Hawarden. -- 26 of 28 -- 27 10. The Respondent accepts it is open to the Commission in relation to those events to conclude that the Appellant's subjective interpretation of the interchange with Dr Hawarden led to her psychiatric injury.56 [127] On this basis, it is accepted that the injury arose out of, or in the course of, the Appellant's employment where employment was a significant contributing factor. Reasonable management action taken in a reasonable way [128] It is not in contention that the Appellant was subject to the authority and direction of doctors, including Dr Hawarden. [129] Further, the Regulator does not dispute that the injury arose out of management action. [130] However, it does remain in dispute whether the injury arose out of, or in the course of, reasonable management action taken in a reasonable way. [131] In consideration of the evidence referred to above and to the factual findings made, the following management action was taken: (a) Dr Hawarden reviewed the patient's medical history with the Appellant to ascertain why she had a cancer patient booked for a phone review; (b) Dr Hawarden provided clinical advice and information to the Appellant with respect to checking the back of the patient's throat when they presented with ear pain to exclude the clinical presentation of cancer; and (c) Dr Hawarden advised the Appellant of Dr Quail's decision that phone reviews were only to be conducted by Dr Quail and the registrars. [132] Further, the identified management action should be considered in the context of the following matters: (a) that Dr Hawarden commenced looking at the patient file on the Appellant's computer to assist the Appellant to find out why she had a cancer patient booked for a phone review; (b) that Dr Hawarden gained knowledge of the patient, their medical history and condition at the same time as the Appellant as they worked backwards through the medical history on the patient's electronic file; 56 Respondent's Written Submissions filed 19 November 2024 (n 14) [9]-[10]. -- 27 of 28 -- 28 (c) that Dr Hawarden provided information to the Appellant about how to check for the clinical signs of a throat cancer as a "teaching opportunity"; and (d) the decision by Dr Quail regarding the phone reviews had been conveyed to Dr Hawarden earlier in the day on 26 November 2021 and he in turn advised the Appellant of the decision noting that she had a phone review booked. [133] In the context of the matters listed above, I consider that the relevant management action was reasonable and taken in a reasonable way. [134] The Appellant's appeal is premised on the basis that Dr Hawarden formed a view that she missed a cancer diagnosis and that as a result she was not allowed to see patients in her clinic anymore. For the reasons already discussed above, that is not accepted. [135] Consequently, I find that the Appellant has not discharged the onus that rests on her to establish that the management action was not reasonable nor taken in a reasonable way. [136] The management action taken during the conversation on 26 November 2021, was reasonable and taken in a reasonable way. In these circumstances, the nominated stressor for the injury is excluded by operation of s 32(5) of the WCR Act. [137] The appeal is dismissed. Order [138] Accordingly, I make the following orders: 1. The appeal is dismissed. 2. An application for costs, if any, should be made by the Workers' Compensation Regulator within 28 days. -- 28 of 28 --