Duggan v Workers’ Compensation Regulator [2024] ICQ 13

INDUSTRIAL COURT OF QUEENSLAND CITATION: Duggan v Workers’ Compensation Regulator [2024] ICQ 13 PARTIES: CORNELIUS DUGGAN (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) FILE NO: C/2023/46 PROCEEDING: Appeal DELIVERED ON: 28 May 2024 DELIVERED AT: Brisbane HEARING DATE: 7 May 2024 MEMBER: Davis J, President ORDERS: 1. The appeal is dismissed. 2. There be no order as to costs. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – WHAT IS AN INJURY – Where the appellant worked as a groundsman at a primary school – where the appellant was the subject of two complaints made by a teacher at the school – where the complaints were made nine months apart – where the principal informed the appellant of the complaints as they happened – where the appellant suffered psychological injury as a result of being informed of the complaints – where the appellant sought workers compensation for the injury incurred – where the appellant alleges the date of injury was the date of the second complaint – where the respondent alleges the date of injury was the date the appellant was issued with a workers compensation medical certificate – where the Queensland Industrial Commission found the date of injury was the date of diagnosis of injury – where the Commission found the injury was excluded pursuant to s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – where the Commission dismissed the appellant’s application – where the appellant appealed to the Industrial Court of Queensland – where the Industrial Relations Act 2016 limits rights of appeal to where the grounds are errors of law or jurisdiction except by leave – where the appellant complained of factual errors by the Commission – whether there was error by the Commission – whether the injury is excluded by s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – -- 1 of 14 -- 2 whether the injury arose during the course of reasonable management action – whether the management action was taken in a reasonable way by the principal – whether that thereby precludes the appellant from claiming workers compensation. LEGISLATION: Industrial Relations Act 2016, s 557 Workers Compensation and Rehabilitation Act 2003, s 32, s 561 CASES: Duggan v Workers’ Compensation Regulator [2023] QIRC 309, related Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited Turay v Workers’ Compensation Regulator [2023] ICQ 13, cited Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited Workers’ Compensation Regulator v Glass (2020) 4 QR 693; [2020] QCA 133, cited COUNSEL: T O’Brien for the appellant C Clark for the respondent SOLICITORS: Optimum Legal for the appellant Mr Clark was instructed directly by the Workers’ Compensation Regulator [1] The appellant, Cornelius Duggan, made a claim for compensation under the provisions of the Workers Compensation and Rehabilitation Act 2003 (WCR Act). That claim was rejected by WorkCover, whose decision was upheld by the Workers Compensation Regulator (the Regulator). [2] From the Regulator’s decision, Mr Duggan appealed to the Queensland Industrial Relations Commission (the Commission) where he was unsuccessful.1 It is from the Commission’s decision that Mr Duggan appeals to this Court. Background [3] Brisbane Catholic Education (BCE) operates St Martin’s Catholic Primary School at Carina. [4] Working at the school at relevant times were: (a) the appellant, who was employed as a groundsman; (b) Geoffrey Sullivan, the principal of the school; and 1 Duggan v Workers Compensation Regulator [2023] QIRC 309. -- 2 of 14 -- 3 (c) a teacher whom I will call W.T.. [5] In about October 2018, W.T. complained to Mr Sullivan that Mr Duggan had made some comment to her which she considered inappropriate and made her uncomfortable (the first complaint). That comment made by Mr Duggan was apparently a compliment addressed to W.T.. [6] W.T. did not complain to Mr Duggan directly so Mr Duggan’s first knowledge of the first complaint was through Mr Sullivan. [7] Mr Sullivan’s response to the first complaint was to proceed informally rather than to follow a formal complaint process. He spoke to Mr Duggan and directed him not to approach or speak with W.T. except in an emergency. [8] Avoiding W.T. was no doubt challenging for Mr Duggan. Teachers naturally have the run of the entire school and Mr Duggan would have had no knowledge of W.T.’s expected movements. Mr Duggan’s work was varied. He was the school gardener and handyman, but also performed various other tasks such as opening the school and classrooms in the morning, and generally checking the school and its grounds. Therefore, his duties took him all over the school at random times. [9] Mr Duggan heard nothing further until 27 June 2019 in relation to any complaints. On that day, Mr Sullivan spoke to Mr Duggan about a further complaint made by W.T. (the second complaint). [10] The second complaint was reduced to writing and dated 25 June 2019. Relevantly, it was in the following terms: “2019 I didn’t seem to have any issues with Con this year until recently. Monday 13/5/2019 I had taken my [class] to the Dominic Centre for a dance lesson. This was to go over the dance that they were learning for the fete. There were only the [class] in the hall. At one point, Con came into the hall and stood on phone went out and came back in a number of times. At one point he stood for about 3 minutes and appeared to be just watching. He was in the hall for about 15 minutes. Thursday 6/6/19 It was about 8am when we were doing staff photos on this day. Con was there and I heard him doing his French voice and talking in that way to some of the other staff. Whilst he didn’t say anything directly to me, it made me feel quite uncomfortable as this is what he was doing to me in 2018. Conclusion I would like Con to stay away from me. If he is around me, he needs to remain professional and not make inappropriate remarks about me or my appearance. If we need to have a conversation, I would like there to be a third person with us.” -- 3 of 14 -- 4 [11] Mr Sullivan’s contact with Mr Duggan on 27 June 2019 was Mr Duggan’s first knowledge of the second complaint. W.T. did not confront Mr Duggan with the terms of the second complaint or other complaints that she had made against him to Mr Sullivan between the making of the first complaint and the second complaint. [12] From 27 June 2019, there were various communications between Mr Duggan and Mr Sullivan. These are analysed later. [13] On 2 July 2019, Mr Duggan consulted a general practitioner, Dr Linden, who certified Mr Duggan as suffering a medical condition and as being unfit for work until 19 July 2019. [14] On 18 July 2019, Mr Duggan consulted another general practitioner, Dr Joseph, who worked at the same clinic as Dr Linden. Dr Joseph diagnosed Mr Duggan as depressed. He prescribed Zoloft, an anti-depressant drug, and referred Mr Duggan to a psychologist. [15] Mr Duggan asserted that he suffered a psychological or psychiatric injury as a result of the complaints made by W.T. in the workplace. He claimed compensation under the WCR Act. WorkCover, the Regulator and the Commission have all dismissed the claim. The dispute before the Queensland Industrial Relations Commission [16] By the completion of the hearing in the Commission, Mr Duggan had restricted his case. He submitted that it was only the circumstances of the second complaint made by W.T. which were the cause of his injury, not the first complaint. [17] The Regulator accepted: (a) that Mr Duggan is a worker; (b) he has an injury; and (c) he suffered the injury in the course of his employment. [18] However, an “injury” is only a compensable injury under the WCR Act if it falls within the definition of “injury” found in s 32. A psychiatric or psychological disorder, such as Mr Duggan’s injury, is not a compensable injury if the exclusion in s 32(5) applies. That is as follows: “ 32 Meaning of injury … (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; -- 4 of 14 -- 5 (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” [19] The sole issue before the Commission was whether the injury suffered by Mr Duggan arose out of reasonable management action taken in a reasonable way, by BCE through Mr Sullivan.2 [20] In the course of determining that issue, a dispute arose as to the date of the injury. Mr Duggan contended that the date of the injury was 2 July 2019, when Dr Linden certified him as unfit for work. The Regulator contended that the relevant date was 27 July 2019. The distinction was said to be important because Mr Sullivan took management action in relation to W.T.’s complaints well after 2 July 2019. The Regulator relied on those steps taken by Mr Sullivan as demonstrating the reasonableness of the management action and the reasonableness of the way it was taken. [21] The Commission determined that the date of the injury was 18 July 2019 and that Mr Duggan’s claim was excluded under s 32(5) of the WCR Act. Nature of the appeal [22] Section 561 of the WCR Act gives a right of appeal to this Court. Section 561 provides an avenue of appeal which is independent of the rights of appeal from the Commission created by the Industrial Relations Act 2016 (IR Act).3 Therefore, the terms imposed by s 557 of the IR Act, which limit grounds of appeal to this Court to errors of law and jurisdiction, except by leave, do not apply. [23] This appeal is one by way of rehearing as that term is commonly understood.4 This Court therefore reviews the case, drawing its own inferences and conclusions but while recognising the advantages enjoyed by the Commission in hearing the case at first instance.5 The grounds of appeal [24] Four grounds of appeal were articulated in the application to appeal, but only three were pressed. [25] The three grounds advanced on appeal were: 2 Workers Compensation Rehabilitation Act 2003, s 32(5)(a). 3 Workers Compensation Regulator v Glass (2020) 4 QR 693 at [13]-[15]. 4 Turay v Workers Compensation Regulator [2023] ICQ 13 at [80]; and see generally Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281. 5 Fox v Percy (2003) 214 CLR 118 at [25]; and Lee v Lee (2019) 266 CLR 129 at [55], followed in Turay v Workers Compensation Regulator [2023] ICQ 13 at [49] and [50]. -- 5 of 14 -- 6 (i) “The Commission has erred by failing to consider relevant material including the Appellant’s history of being subjected to a direction that he not approach or speak with Ms WT unless in an emergency, when considering the cause of the subject injury.” (Ground 1) (ii) “The Commission has erred by finding that the cause of the subject injury was not the making of a second complaint by Ms WT on or around 27 June 2019.” (Ground 2) (iii) “The Commission has erred in finding the date of the injury as 18 July 2019 and not 2 July 2019.” (Ground 3) Ground 1: The Commission failed to consider relevant material including Mr Duggan being the subject of the direction in October 2018 [26] Dealing with Ground 2 below I refer in detail to the evidence of Dr Chalk. Dr Chalk’s evidence was that the cause of the injury was the circumstances of the second complaint not the first, but that the first complaint made Mr Duggan more vulnerable to suffering an injury of the kind he ultimately suffered. [27] Set out at paragraph [40] of these reasons is a passage from Dr Chalk’s report of 25 January 2021. The Industrial Commissioner referred to that evidence and then observed: “[116] The confluence of factors that Dr Chalk is referring to is not directly nominated by him. However, it can be inferred that they are those factors referred to in the question posed to the Doctor. I consider that Dr Chalk was at pains to make clear that Mr Duggan's injury did not arise from the matters associated with the first complaint. Here, he describes the "second event" as being the catalyst for the injury.” [28] It is obvious that the Industrial Commissioner has proceeded on the basis that “the confluence of factors” includes the circumstances of the first complaint but it is the second complaint which was the direct proximate cause of the injury. That was Mr Duggan’s case before the Commission6 and Mr O’Brien, acting for Mr Duggan, accepted that was Mr Duggan’s case on appeal.7 [29] The actions taken by Mr Sullivan after receipt of the second complaint were unremarkable. On 27 June 2019, the day of receipt of the second complaint, Mr Sullivan alerted Mr Duggan to it being received. On the same day, Mr Sullivan emailed Mr Duggan advising of the availability of assistance through the Employee Assistance Program. Arrangements were made for Mr Sullivan and Mr Duggan to meet at the “Men’s Shed” on 1 July 2019 to discuss the matter, but on 29 June 2019 Mr Sullivan read the complaints to Mr Duggan. [30] On 1 July 2019, Mr Sullivan emailed Mr Duggan reminding him of the 2018 direction not to speak to or approach W.T. and reminding him to be professional towards her. 6 Duggan v Workers’ Compensation Regulator [2023] QIRC 309 at [131]. 7 See also Duggan v Workers’ Compensation Regulator [2023] QIRC 309 at [63]. -- 6 of 14 -- 7 [31] Any reasonable interpretation of that email is that Mr Duggan was being told no more than to maintain the status quo. Mr Sullivan was attempting to ensure that the matter did not escalate further. [32] That action prompted a response from Mr Duggan which included requesting the following: “1. A letter from you or Catholic Education stating that the complaint by [W.T.] is unsubstantiated; and 2. A letter from you as to what processes the school will be implementing to ensure I am able to perform my work duties without interference or fear of further vexatious complaints from [W.T.].” [33] Given that the second complaint had only just been made and there had been no time to properly investigate it, Mr Duggan’s requests were unreasonable. As previously explained, he consulted Dr Linden the next day and left the workplace. [34] Mr Sullivan took other steps after 1 July and before the date of the injury (18 July 2019) but it is unnecessary to consider those matters. [35] Mr Sullivan was obviously required to alert Mr Duggan to the making of the second complaint. He did so promptly. He did so at a place and in an atmosphere (the Men’s Shed) where he could speak confidentially and privately with Mr Duggan. There is no basis upon which it can be said that the management action taken by Mr Sullivan was not reasonable or not reasonably undertaken. Ground 2: The Commission found that the cause of the injury was not the making of the second complaint on 27 June 2019. [36] The Industrial Commissioner found that it was the communication and handling of the second complaint which caused the injury. Mr Duggan submits that it was the making of the second complaint which caused the injury. This is of some significance. The making of the second complaint was an action by W.T. not Mr Sullivan. Therefore, so the submission goes, the injury was not caused by management action by Mr Sullivan and therefore consideration of the exclusion in s 32(5) of the WCR Act does not arise. [37] Mr Duggan seeks to make out Ground 2 by relying upon the evidence of Dr Chalk. [38] Ground 2, on its face, is somewhat illogical. The injury suffered by Mr Duggan was a psychiatric or psychological one. It was suffered due to his reaction to the content and nature of the allegations which constituted the second complaint. As earlier observed, W.T. did not make the second complaint to Mr Duggan. It was made to Mr Sullivan who then passed on the details to Mr Duggan. Therefore, the direct and proximate cause of the injury must have been Mr Duggan learning of the second complaint from Mr Sullivan. When properly understood, this is the effect of Dr Chalk’s evidence. -- 7 of 14 -- 8 [39] In his first report of 10 October 2019, Dr Chalk opined: “I am of the view that his employment is the major significant contributing factor in causing his condition and that his condition has arisen primarily as a result of how management handled the complaint, although clearly the management action would not have occurred had the original complaint not emerged.” [40] In his second report of 25 January 2021, Dr Chalk offered this: “In my view, his difficulties have arisen as a consequence of the confluence of factors described. Whilst I think that Mr Duggan was certainly vulnerable and having some difficulties prior to the second event, in my view, it was the second event that was the catalyst for his clear decompensation and the development of his adjustment disorder.” [41] In his third report of 12 February 2021, Dr Chalk, when asked to clarify aspects of his earlier report said: “In further clarification of your report dated 25 January 2021, can you please advise whether in your professional opinion, was the making of the second complaint against Mr Duggan the major significant contributing factor to the injury suffered? Yes.” [42] Even before his cross-examination, it was clear what Dr Chalk’s opinion was, namely: (i) Mr Duggan was vulnerable because of the first complaint which left him anxious at work;8 (ii) the communication of the second complaint was the major significant contributing factor to the injury; and (iii) the communication of the second complaint obviously would not have occurred if the second complaint had not been made. [43] The Commissioner made these findings: “[142] In expressing this opinion Dr Chalk did not resile from the opinion he expressed in his earlier report that management’s handling of the complaint was the major significant contributing factor. He also repeated his opinion in cross- examination. [143] Accordingly, I do not consider that the intent of Dr Chalk’s third report was to disturb his earlier opinion with respect to the cause of the injury. I consider that Dr Chalk’s view is that the injury arose out of management’s handling of the second complaint. I consider such an opinion is consistent 8 This is the substance of Ground 1. -- 8 of 14 -- 9 with the factual evidence I have referred to above.” (footnotes omitted) [44] Those findings are said by Mr Duggan to be at odds with what Dr Chalk said in cross- examination and set out in the following passages of the Commission’s judgment: “[142] In expressing this opinion Dr Chalk did not resile from the opinion he expressed in his earlier report that management’s handling of the complaint was the major significant contributing factor. He also repeated this opinion in cross-examination. [143] According, I do not consider that the intent of Dr Chalk’s third report was to disturb his earlier opinion with respect to the cause of the injury. I consider that Dr Chalk’s view is that the injury arose out of management’s handling of the second complaint. I consider such an opinion is consistent with the factual evidence I have referred to above.” and “Now that was your diagnosis?---That’s right. In the aftermath of these difficulties?---Mmm. Now the difficulties that you’re referring to were the making of a complaint and how management dealt with it?---That’s right.” and “Okay. Okay. On the second page, this question was put to you. It’s at line 4: Further clarification of your report dated the 25th January can you please advise whether in your professional opinion was the making of the second complaint against Mr Duggan a major significant contributing factor to the injuries suffered?---Yes.” [45] Mr O’Brien’s submission misunderstands the effect of the cross-examination. Counsel for the Regulator was attempting to eliminate the circumstances of both the making of the first complaint and its communication to Mr Duggan as a cause of the injury. [46] Having quarantined the circumstances of the second complaint, the evidence was then clear. It was the communication of the second complaint by Mr Sullivan to Mr Duggan which caused the injury, but obviously that communication would never have occurred unless the second complaint was made in the first place. [47] The findings of the Commissioner are consistent with the evidence. No complaint can be validly made about those findings and there is no substance in Ground 2. -- 9 of 14 -- 10 Ground 3: The Commission erred in finding that the date of the injury was 18 July 2019 [48] The Commission found the date of injury as 18 July 2019 not 2 July 2019. [49] As earlier observed, Mr Duggan gave evidence in his own case. He called Dr Chalk, a practising psychiatrist, to give evidence on his behalf. Neither Dr Linden nor Dr Joseph gave evidence. The clinical notes prepared by them during their consultations with Mr Duggan were tendered before the Commission.9 [50] Dr Chalk opined: (i) that Mr Duggan suffered an adjustment disorder with anxious mood; and (ii) his employment was the major contributing factor in causing the condition; and (iii) “it was the second event that was the catalyst for his clear decompensation and the development of his adjustment disorder” 10. [51] Dr Chalk gave no opinion as to the date on which the injury arose. [52] Dr Linden’s clinical notes of his consultation with Mr Duggan on 2 July 2019 were11: “… History: working as a groundkeeper note on medication and phx cardiac issues allegedly made a comment about a colleagues jewellry she was offended some work issues with Cath Ed feels under duress under M adsett cardiac issues” [53] Dr Joseph saw Mr Duggan on both the 18th and 24th of July 2019. The clinical notes: (a) for 18 July were12: “History: 1. Terrible ongoing circumstances at work – in Oct 18, as a single couteous gesture, he complemented a teacher on the jewellery she was wearing – no underlying agenda of sexual harassment, just a spontaneous gesture of one-off courtesy BUT this has triggered a process of official warning, not to come into physical/visual/auditory contact of that teacher Con is distressed, humiliated, despondent has been off work Low labile mood, depressed Counselled Start Zoloft 9 Exhibit 14. 10 The second complaint. 11 The notes are faithfully reproduced notwithstanding the appearance of obvious errors. 12 The notes are faithfully reproduced notwithstanding the appearance of obvious errors. -- 10 of 14 -- 11 Offred referral to a Psychologist [redacted] [redacted] Rx Doxy 100mg 2 wks, Celestone-M crm …” (b) And for 24 July 2019: “History: Despondent re. workplace incident and the ongoing process Can’t face returning to work Zoloft helping mood Long counselling sessions To see a Psychologist – access to Psychologist via Catholic Education at no cost Will increase Zoloft to 100mg after 2 weeks Treatment/Plan: Zoloft Tablets 50mg Tablets deleted Zoloft Tablets 100 mg Tablets 1 tab mane after breakfast” [54] Mr Duggan gave no evidence in chief as to his conversations with Dr Linden or Dr Joseph. The clinical notes were tendered during cross-examination.13 [55] Mr Duggan was cross-examined about his communications with Mr Sullivan, including a discussion where Mr Duggan told Mr Sullivan that he would be on medical leave from 3 to 19 July. That was consistent with the medical certificate issued by Dr Linden. [56] Perhaps unusually, Mr Duggan was then cross-examined on the clinical notes made by Dr Linden on 2 July 2019 and Dr Joseph on 18 July 2019. Those notes were of course not Mr Duggan’s documents. No objection was taken and this exchange occurred: “Okay. All right. All right. On Tuesday, the 2nd of July, he – you contacted him?---Yes. Hi Geoff, sorry for the interruption of your break. I’ve left a voice message and I thought I should follow up with a text so you’re aware that I’ll be on medical leave from tomorrow, the 3rd through the 19th of July. Regards, Con. ?---Yes. Okay. And by that time, you’d sent him that generic medical certificate that you were suffering a medical condition, which has already been tendered?---Yes. Okay. All right. Now, have you got the medical records there at all?- --Yes. On page 7---?---Yes. ---you went to see a GP on Tuesday, the 2nd of July and you spoke to a Dr Michael Linden, that’s spelt L-i-n-d-e-n, at 10.08am. Do you see that?---Yes. 13 T1-32. -- 11 of 14 -- 12 And it records as follows: Working as a groundkeeper. Note, on medication PHx --- That’s previous history “of cardiac issues”? --- Yes. Okay. Allegedly made a comment about a colleague’s jewellery. She was offended. Okay. Do you agree with – what I’m essentially asking you is do you agree that this is an accurate record of what you told the doctor?---It’s probably not complete but yes, it is. Well, it’s not word for word?---No. We accept that but in as much as it summarises it, is it a fair summary? That’s---?---Did I say to him that I’d been put in a situation for complimenting a staff member? Yes, I did what it alludes to. Okay. It says: Some work issues with Cath Ed ?---Yes. Okay. What were you referring to there?...Cath Ed is who I’m employed by, BCE. Okay?---St Martin’s School. Okay. It says there “feels under duress”?----Yes. Okay. Is it fair to say that at that stage, what you were conveying to the doctor that you were feeling under a bit of pressure?---A bit of pressure might be a little on the light side, yes. Okay. All right. And it says: Under M Adsett for cardiac issues. ?---Yes. Is that the cardiologist, Dr Adsett, is it?---It’s one of the cardiologists I see, yes. Okay. All right. Okay. Well, just for present purposes, let’s go above – to the consultation above on the 18th of July, which is what, 16 days later?---Yes. This is with the doctor, Peter Joseph. We’ll come to that in due course but it was only at that stage that you told them that you were “distressed, humiliated, despondent, had been off work, a low mood, depressed,” that you were counselled, that you were given an antidepressant and that you were offered a referral to a psychologist?- --Yes. Things had got a lot worse by the 18th of July, hadn’t they?---No. -- 12 of 14 -- 13 Well, put it this way; on the 2nd of July, you weren’t – there’s no talk about you being depressed, distressed, humiliated or despondent, was there?—It’s not mentioned there, no. No. You weren’t given any antidepressant medication?---No, I wasn’t. Okay. And for that matter, you weren’t given any referral to a psychologist?---No, I wasn’t.” [57] Mr Duggan was not re-examined in relation to his conversations with Dr Linden and Dr Joseph. The Industrial Commissioner was left with the short evidence under cross-examination by Mr Duggan and the clinical notes of Dr Linden and Dr Joseph. [58] It is fair to say that Mr Duggan, in cross-examination, gave hints that more may have been said to Dr Linden and Dr Joseph than was recorded. He also said that his condition did not deteriorate (at least in his assessment) from 2 to 18 July 2019. Perhaps this could have been explored in re-examination. Mr Duggan could have been asked whether he said anything to the doctors which was not recorded in the clinical notes. He could have been asked to describe fully his symptoms as they existed on 2 July and 18 July, but he was not. [59] The Industrial Commissioner’s findings were: “[124] In nominating 2 July 2019 as the date of injury Mr Duggan points to his attendance on his general practitioner that day who provided him with a medical certificate. [125] However, the clinical notes from that attendance do not support that date as the date of injury. Relevantly, although the complaint is referred to and Mr Duggan describes feeling “under duress” there is no particularisation of symptoms consistent with the injury. [126] Further, I am not satisfied that the evidence of Mr Duggan established that he was suffering symptoms that supports a conclusion that the date of injury is 2 July 2019. [127] In contrast, the consultation on 18 July 2019, does record Mr Duggan reporting symptoms consistent with the claimed injury. It is reported that Mr Duggan is distressed, humiliated, despondent and presents with “low labile mood, depressed”. On this occasion, Mr Duggan was prescribed Zoloft, and referred to a psychologist. [128] On this evidence I consider the date of injury to be 18 July 2019. Whilst the Regulator relies on 27 July 2019, it does so because that is the date on which Dr Joseph issued the “Workers’ Compensation Medical Certificate”. [129] On the evidence however, I consider that Mr Duggan’s date of injury is consistent with his presentation to Dr Joseph on 18 July 2019.” -- 13 of 14 -- 14 [60] As observed by the Industrial Commissioner, the clinical notes of 2 July 2019 are consistent with upset and distress but do not evidence a clinically definable psychiatric or psychological injury. The notes of 18 July 2019 do. [61] In those circumstances, the finding by the Industrial Commissioner that the injury occurred on 18 July 2019 was all but inevitable. [62] Mr Duggan challenges those findings based on a passage in the second report by Dr Chalk. Dr Chalk’s reports are dated 10 October 2019, 25 January 2021 and 12 February 2021.14 Dr Chalk first saw Mr Duggan in October 2019. [63] In the second report15, Dr Chalk gives the following history as he recorded it: “… Essentially, there was an initial complaint that he had inappropriately complimented one of the female teachers and this was delivered to him by his boss, Jeff Sullivan. He was told to avoid the teacher and he did that for nine months. Apparently, a formal complaint was then raised in 2019, the basis of which was that he had been in a hall where this teacher was because the principal had asked him to do a job; he had appeared in a staff photograph and the teacher could “allegedly hear me talking”. Mr Duggan reported, in the aftermath of this, he described “losing the plot”. He went off work and applied to WorkCover …” [64] The incident to which Dr Chalk is referring is Mr Sullivan advising Mr Duggan of the second complaint on 27 June 2019 and then Mr Duggan going off work. It is clear that on 2 July Mr Duggan consulted Dr Linden. [65] Mr O’Brien seized upon the words “losing the plot”. He submits, in effect, that “losing the plot” is synonymous with “suffering the injury”. Therefore, he argues the injury occurred at the latest on 2 July 2019. [66] That submission ought to be rejected. There is no proper factual basis for it. “Losing the plot” is consistent with the distress reported by Dr Linden. With or without the history of Mr Duggan “losing the plot”, the first evidence of a clinically observable psychiatric or psychological condition appears in the notes of 18 July 2019. [67] In my view, the Industrial Commissioner was right to date the injury at 18 July 2019. [68] The appeal should be dismissed. Mr Clark for the Regulator indicated that no order for costs would be sought in the event of the appeal being dismissed. [69] Orders: 1. The appeal is dismissed. 2. There be no order as to costs. 14 Exhibits 23, 24 and 25. 15 25 January 2021. -- 14 of 14 --