Browne v Workers' Compensation Regulator [2017] QIRC 60

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Sheraden Jayne Browne v Workers’ Compensation Regulator [2017] QIRC 060 PARTIES: Sheraden Jayne Browne (Appellant) v Workers’ Compensation Regulator (Respondent) CASE NO: WC/2016/178 PROCEEDING: Appeal against a decision of the Workers’ Compensation Regulator DELIVERED ON: 6 June 2017 HEARING DATES: 5 and 6 June 2017 MEMBER: Deputy President Kaufman ORDERS : 1. APPEAL ALLOWED 2. The decision of the Workers' Compensation Regulator dated 2 September 2016 is set aside and substituted with a finding that Mrs Browne's application for compensation is one for acceptance 3. The Workers' Compensation Regulator is to pay the appellant's costs of and incidental to the appeal in a sum to be agreed or, failing agreement, to be the subject of a further application to the Commission CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where the appellant claims compensation for psychological injuries – whether the employment was the major significant contributing factor to the injury – appeal allowed CASES: Workers’ Compensation and Rehabilitation Act 2003, s32(1) APPEARANCES: C Clark of counsel instructed by Bennett & Philp lawyers for the appellant P Rashleigh of counsel directly instructed by the Workers’ Compensation Regulator -- 1 of 5 -- 2 Reasons for Decision The following reasons were delivered from the bench on 6 June 2017. [1] Mrs Sheraden Jayne Browne appeals the decision of the Workers’ Compensation Regulator to affirm the decision by Woolworths Ltd (a self-insurer) to reject her application for compensation. [2] The factual circumstances are relatively limited and uncontroversial. [3] In 2015 Mrs Browne was employed as an inventory merchandiser at Woolworths Nundah store. She had been employed by Woolworths for some 20 years and claims that she suffered a personal injury on 17 December 2015. [4] It is not contested that Mrs Browne was a worker, that she suffered a personal injury, and that her injury arose out of or in the course of her employment. As events unfolded in the hearing, the case was narrowed to the question of whether the employment was the major significant contributing factor to Mrs Browne’s personal injury, a psychiatric or psychological disorder. The Legislation [5] This appeal involves consideration of s 32(1) of the Workers’ Compensation and Rehabilitation Act. At the relevant time, s 32 took the following form:1 “32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if – (a) for an injury other than a psychiatric or psychological disorder — the employment is a significant contributing; or (b) for a psychiatric or psychological disorder—the employment is the major 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. (Emphasis added) 1 See the Act current at 9 October 2015. -- 2 of 5 -- 3 The facts [6] As inventory merchandiser, Mrs Browne’s tasks largely involved checking that food products placed on the shelves had not reached their expiry dates. Another of her functions was to clean the cool room on a weekly basis. This task involved removing the contents of the cool room, which were largely contained on roll cages or in milk crates. She would place the contents of the cool room in a corridor outside the cool room doors, which often resulted in the blocking of the corridor adjacent to the entrance of the cool room where other merchandise was also stacked. [7] On 17 December 2015, as was her custom, she started work at 5am and proceeded to commence her task of cleaning the cool room. She had removed all the contents and placed them in the corridor, which was particularly crowded given the pre-Christmas period. Another of her cleaning duties was to remove two metal grates outside the cool room in order to clean them and the drain that they covered. After she had removed the contents of the cool room she went to another area of the supermarket to obtain a hose in order that she could wash down the floor of the cool room. While she was getting the hose two other employees, Aaron Gourlay, a fresh food inventory manager, and Jason Kernke, a long life manager and Mrs Browne’s immediate supervisor, were trying to move three roll cages from the store room to the retail store utilizing the corridor behind the cool room. Their progress was impeded by Mrs Browne's trolleys. Mr Gourlay replaced the metal grates in order that he could have access to the cool room and wheeled three trolleys that Mrs Browne had removed back into the cool room. Mr Gourlay says that his intention was to relocate the cool room trolleys back outside the cool room once he and Mr Kernke had wheeled their trolleys past the obstruction point. Whilst Mr Gourlay, and possibly Mr Kernke, were in the cool room, Mrs Browne returned and sought an explanation as to why her trolleys had been returned to the cool room. [8] An argument ensued during which Mrs Browne and Mr Gourlay became agitated and, at the very least, raised their voices. The argument was of short duration, no longer than five minutes, at the conclusion of which Mrs Browne broke down and left the cool room. Mrs Browne was severely distressed, sought the assistance of another worker to get her street clothes and left the premises. She encountered Damien Barry, the store manager, in the carpark as she was about to drive out. Mr Barry noticed her distress and asked her what had happened, however she was too upset to provide an articulate description. He asked if she was ok to drive to which she replied in the affirmative and he told her to go home, which she did. Mr Browne (the appellant’s husband) gave evidence to the effect that she was very distressed when she got home; he could hardly understand her as she was hysterical, crying, shaking and devastated. Mr Browne took her to see a general practitioner, Dr John Luck, who diagnosed her as suffering from anxiety and adjustment disorder and provided her with medical certificate and prescribed her temazepam. [9] Mrs Browne’s evidence was that she had a history with Mr Gourlay who, for some months prior to the incident, had unfairly criticized her for allegedly working too -- 3 of 5 -- 4 slowly and being a waste of wages. She asserted that this behaviour only occurred when he could not be observed. She also claims that she had overheard Messrs Kernke and Gourlay disparaging her work performance. Mrs Browne also said that on one occasion when she and Mr Kernke were working in one of the aisles in the supermarket she had complained to him about Mr Gourlay's behavior. Her evidence was that Mr Kernke's only response was “yeah ok”. [10] Insofar as the incident of 17 December 2015 is concerned, Mrs Browne’s evidence is to the effect that after she asked Mr Gourlay what he was doing he became extremely aggressive, swearing at her and gesticulating close to her face. She said that she told Mr Gourlay not to treat her in that manner. She said Mr Kernke was present at the time and when she asked him to make Mr Gourlay stop and asked what he was going to do about it Mr Kernke said something to the effect of “what do you want me to do? Don’t you start on me" and then swore at her. She then left the cool room. [11] Mr Gourlay and Mr Kernke do not accept Mrs Browne's version of the events of 17 December 2015. Mr Kernke said that when Mrs Browne re-entered the cool room she was upset, aggressive and loud and that Mr Gourlay "returned fire". Mr Gourlay said that when Mrs Browne re-entered the cool room she began yelling at him. Although he doesn't remember using the word "bitch", he conceded that he might have referred to Mrs Browne as such. He denies having complained about the pace of her work or of having made derogatory comments about her, and they both deny having discussed her performance. Mr Kernke denies that Mrs Browne had made any complaint to him about Mr Gourlay. [12] Mr William Smith, who was called by the regulator, and who in 2015 was a long life team leader, was apparently in the vicinity of the cool room at the time of the December 2015 incident. He confirmed that the corridor was blocked off and he was also prevented from moving his roll cages past the obstruction. He saw Mr Gourlay move some trolleys back into the cool room and heard an exchange between Mrs Browne and Mr Gourlay. He doesn’t remember anything that was said beyond Mrs Browne asking Mr Gourlay what he was doing and Mr Gourlay advising her he was moving her trolleys back into the cool room. He said that he couldn’t remember anything that was said or foul language being used. He did not hear loud voices. In cross examination he said he did hear Mrs Browne saying to Mr Kernke “are you going to let him speak to me like that”, and that Mr Kernke said “he did not have time for this shit”. Consideration [13] The case for Mrs Browne is relatively straightforward. Given that the regulator accepts that Mrs Browne was a worker, that she suffered a personal injury of a psychiatric or psychological nature and that the injury arose out of or in the course of her employment, the only issue to be determined is whether the employment was the major significant contributing factor to the injury. Mr Clark, counsel for the appellant contends that it was, as it arose during the period both protagonists were going about their duties. He distinguished between that and a situation where an -- 4 of 5 -- 5 argument between workers occurs over something completely unrelated to work, where it might be argued that the workplace was merely the setting in which the argument took place. [14] Mr Rashleigh, counsel for the regulator, submits that unless I accept Mrs Browne's version of the events, I cannot find that the employment is the major significant contributing factor to the injury because the injury was not due to her employment. His argument is that because she was the instigator of the altercation that was the cause of the injury, she took herself outside the employment. He submits that employees are not at work to abuse one another. It follows that when they do so they are outside the employment. Mr Rashleigh went on to submit that going in there and abusing someone to the extent that it causes a reaction brings the action outside the employment; that such conduct is not part of Mrs Browne's employment. [15] I do not accept Mr Rashleigh's argument. Both Mrs Browne and Mr Gourlay, as well as Mr Kernke, were going about their duties when the argument broke out. What occurred was a disagreement about how the work was to be performed that escalated into an argument. That incident was the major significant contributing factor to Mrs Browne's personal injury. Exchanges between employees are an inherent part of their employment. The fact that an exchange escalates into an argument does not remove the activity from the employment. [16] As there was no other cause alleged for the personal injury, I find that the employment was the major significant contributing factor to the personal injury. It follows that the appeal must be allowed. [17] The appeal is allowed. The decision of the regulator dated 2 September 2016 is set aside and substituted with a finding that Mrs Browne's application for compensation is one for acceptance. The regulator is to pay the appellant's costs of and incidental to the appeal in a sum to be agreed or, failing agreement, to be the subject of a further application to the Commission. -- 5 of 5 --