Firat v Workers' Compensation Regulator [2024] QIRC 137

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Firat v Workers' Compensation Regulator [2024] QIRC 137 PARTIES: Firat, Fatime (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2020/17 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 29 May 2024 HEARING DATES: 4 April 2022 25, 26 and 27 July 2022 26 and 27 October 2022 MEMBER: HEARD AT: O'Connor VP Brisbane ORDER: 1. The appeal is dismissed. 2. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 11 February 2020 is confirmed. 3. The parties shall exchange written submissions on the question of costs by 4.00 pm on 28 June 2024. Unless otherwise ordered, the question of costs shall be determined on any written submissions received and without further oral hearing. -- 1 of 29 -- 2 CATCHWORDS: WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - where appellant was employed in a customer service role by Filla Food Group Pty Ltd trading as Origin Kebabs - where appellant claims she sustained a psychiatric condition, namely stress, anxiety and depression due to bullying, harassment and unreasonable management action in the workplace - whether appellant sustained a personal injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 - whether the injury arose out of or in the course of her employment - whether employment was the major significant factor contributing to any such injury - whether the injury arose out of reasonable management action taken in a reasonable way - whether appellant suffered an aggravation of a pre-existing injury LEGISLATION: CASES: Workers' Compensation and Rehabilitation Act 2003, s 32 Avis v WorkCover Queensland (2000) 165 QGIG 788 Carman v Q-COMP (2007) 186 QGIG 512 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Commonwealth of Australia v Lyon (1979) 24 ALR 300 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 CS Energy Limited v Q-COMP [2008] ICQ 2; 188 QGIG 6 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 JBS Australia Pty Ltd AND Q-COMP [2013] ICQ 13 Kavanagh v The Commonwealth (1960) 103 CLR 547 -- 2 of 29 -- 3 Linke v Simon Blackwood [2014] QIRC 181 Mimica v Q-Comp (2007) 184 QGIG 31 Misevski v Q-COMP [2009] ICQ 2 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Obstoj v Van de Loos [1987] QSC 76 Qantas Airways Ltd v Q-COMP (2009) 191 QGIG 115 Q-COMP v Green (2008) 189 QGIG 747 Queensland v Coyne (2003) 172 QGIG 1447 WorkCover Queensland v Curragh Queensland Mining Pty Ltd [2002] ICQ 59; (2003) 172 QGIG 6 Theiss Pty Ltd v Q-COMP [2010] ICQ 27 Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 156 Yousif v Workers' Compensation Regulator [2017] ICQ 004 APPEARANCES: Ms F. Firat, the Appellant. Ms H. Blattman, Counsel, directly instructed by the Workers' Compensation Regulator. Reasons for Decision [1] Ms Fatime Firat ('the Appellant') was employed in a customer service role by Filla Food Group Ltd ('Filla') trading as Origin Kebabs, at Labrador and Broadbeach from August 2017 to 6 January 2019. The Appellant claims that during her employment with Filla she sustained a psychiatric condition, specifically stress, anxiety, depression and Post Traumatic Stress Disorder ('PTSD') due to bullying, harassment, accusation etc. and unreasonable management action in the workplace.1 [2] On 11 January 2019 the Appellant lodged an Application for Compensation with WorkCover seeking workers' compensation for the psychiatric injury she allegedly sustained. By decision dated 11 February 2020, the Workers' Compensation Regulator (the Respondent) confirmed the decision of WorkCover to reject the Appellant's 1 Appellant's Statement of Facts and Contentions filed 1 October 2021, p 4, [3], [4]. -- 3 of 29 -- 4 application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act).2 [3] On 9 March 2020 the Appellant appealed that decision to the Queensland Industrial Relations Commission ('the Commission'). [4] The Appellant contends that on 6 December 2018 she attended Primary Medical and Dental Centre, ('PMDC') Southport and was referred to Acute Mental Health Queensland as well as MindTime Psychology.3 On 6 January 2019 the Appellant attended Dr Maria Martinez, PMDC who issued her with a Medical Certificate for stress leave due to work from 6-13 January 2019. At a consultation on 11 January 2019, Dr Martinez issued a Workers' Compensation Medical Certificate in which the Appellant was diagnosed with work stress and referred to a psychologist for treatment.4 [5] The Appellant further contends that on 21 January 2019, Dr Martinez provided a report to WorkCover in which she opined that the Appellant's employment was the major significant contributing factor to the cause of injury and that the triggering event was the comment made to the Appellant from a staff member to the effect, 'so you don't get raped you want me to get raped instead'.5 [6] The Respondent admits the Appellant was a worker pursuant to s 11 of the WCR Act. However, the Respondent does not admit that the Appellant sustained a personal injury or the allegation that her employment was the major significant contributing factor to any such injury.6 [7] The Respondent contends that if the Appellant did sustain a personal injury, to which her work was the major significant contributing factor (which is not admitted), the Appellant nevertheless did not sustain an injury pursuant to s 32 of the WCR Act because any such injury arose out of reasonable management action reasonably taken in relation to her employment, or her expectation or perception of reasonable management action.7 [8] The Respondent submits that the claim is not one for acceptance and the appeal should be dismissed.8 [9] The appeal before the Commission proceeded as a hearing de novo. The Appellant carries the onus of proving on the balance of probabilities that she has an "injury" within the meaning of the WCR Act.9 2 Notice of appeal filed 9 March 2020. 3 Appellant's Statement of Facts and Contentions filed 1 October 2021, p 4, [5]. 4 Ibid, p 11, [34]-[35]. 5 Ibid, [36]. 6 Respondent's Statement of Facts and Contentions filed 26 October 2020, [37] (a)-(c). 7 Ibid, [37] (d). 8 Ibid, [37] (f). 9 Queensland v Coyne (2003) 172 QGIG 1447; Mimica v Q-Comp (2007) 184 QGIG 31. -- 4 of 29 -- 5 [10] It is not in dispute that the Appellant was a "worker" at the relevant dates. Legal requirements and onus of proof [11] In order for her appeal to succeed, the Appellant must prove that: (a) she suffered an injury; (b) the injury arose out of, or in the course of, employment; and (c) employment was a significant contributing factor to the injury. [12] Only if the Appellant is able to satisfy those statutory criteria will it become relevant to consider whether her disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment. Statutory Provisions [13] The appeal has to be decided by reference to s 32 of the WCR Act, the relevant subsections of which provide: 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; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; -- 5 of 29 -- 6 (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (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. Issues for determination [14] The issue for determination in this appeal is whether the Appellant sustained an "injury" within the meaning of that term in s 32 of the WCR Act. [15] The Appellant must demonstrate for the purposes of s 32(3)(b) of the WCR Act that her alleged aggravation of the pre-existing PTSD condition arose out of, or in the course of, her employment and that her employment was a significant contributing factor to that injury. Section 32(3)(b) defines the circumstances in which an aggravation may be regarded as an "injury" for the purposes of s 32. [16] The Commission needs to be satisfied that the Appellant's employment was a significant contributing factor to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the Appellant's post-accident condition.10 [17] For the purposes of s 32(1) of the WCR Act, where the Act speaks of employment being a significant contributing factor to the injury, significant is used in the sense of "important" or "of consequence". [18] The meaning of the phrase "if the employment is a significant contributing factor to the injury" as it appeared in the Workers' Compensation Act 1926 (NSW) was considered by the High Court in Federal Broom Co Pty Ltd v Semlitch where Kitto J said: Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.11 10 JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13. 11 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. -- 6 of 29 -- 7 [19] Windeyer J turned to a "more difficult question": [W]as this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.12 [20] The term "employment" in s 32 of the WCR Act refers to what the Appellant actually did in her employment and not to the fact of being employed. [21] In Croning v Workers' Compensation Board of Queensland, de Jersey P (as his Honour then was) held that the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs".13 [22] In Newberry v Suncorp Metway Insurance Ltd, Keane JA, with whom de Jersey CJ and Muir J agreed, said: The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.14 [23] His Honour later observed: [T]he fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been a 'significant contributing factor to the injury'. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'. Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.15 [24] In Carman v Q-COMP, Hall P said: 12 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, 632-3. 13 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100. 14 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 529. 15 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 532-3. -- 7 of 29 -- 8 It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit. establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain.16 [25] In Q-COMP v Green, Hall P observed that in interpreting s 32 of the WCR Act "the critical phrase is 'a significant contributing factor'. The phrase cannot be equated with 'a significant cause'. If the phrase had that meaning, every injury falling within the phrase would also arise out of the employment."17 [26] In Qantas Airways Ltd v Q-COMP, Hall P said: It is important to bear in mind also that the adjective 'significant' qualifies the expression 'contributing factor'. The notion of 'contribution' in itself requires some linkage between the employment and the injury: compare Favelle Mort Limited v Murray (1975-1976) 133 CLR 580. In those circumstances, it seems to me that it would be wrong to place the meaning of 'significant contributing factor' so far towards the lower end of the spectrum that it carried the meaning of 'more than ephemeral or nominal'. Without treating s 14B of the Acts Interpretation Act 1954 as a directive to construe a Minister's Second Reading Speech rather than of the statute, I take the liberty of observing that 'strong' is not an appropriate word to use to indicate the positioning of the phrase 'significant contributing factor' within the spectrum of meaning. With hindsight, the words adopted in Q-Comp v Green (2008) 189 QGIG 747, viz., 'important' and 'of consequence', seem to me to be equally apposite. I should say also that I also doubt that if 'significant' carries the meaning of 'large', 'great', 'weighty' or 'substantial', the amendment would have achieved the objective referred to by the Minister of ameliorating the difficulties which the expression 'the major significant contributing factor' had caused in cases about the aggravation of pre-existing conditions. On balance, I am not prepared to accept the submission that 'significant' bears the meaning of 'large', 'great' 'weighty' or 'substantial'. I regret that I am unable to be more precise than fixing the meaning of 'significant' as towards the lower end but not at the base of the spectrum, and (to the extent that adjectives may be used without supplanting the statutory language) using words such as 'strong', 'important' or 'of consequence'. However the task is to apply a statutory test. The task is not to conceptualise an idea.18 [27] In Chattin v WorkCover Queensland,19 Williams P adopted the reasoning of Connolly J in Obstoj v Van de Loos20 where his Honour said: 16 Carman v Q-COMP (2007) 186 QGIG 512. 17 Q-COMP v Green (2008) 189 QGIG 747, 750. 18 Qantas Airways Ltd v Q-COMP (2009) 191 QGIG 115. 19 [1999] QIC 44; (1999) 161 QGIG 531. 20 [1987] QSC 76. -- 8 of 29 -- 9 The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff's post-accident condition.21 Nature of the Injury [28] It is not in dispute that the Appellant had an underlying condition - PTSD arising out of a childhood incident. [29] Dr Samit Roy, a Consultant Psychiatrist was the Appellant's treating psychiatrist from 14 March 2019. In Dr Roy's report of 21 May 2020, he records a diagnosis of Major Depression, Anxiety Disorder and PTSD.22 Dr Roy said it was hard to know whether the PTSD reaggravation had led to the anxiety and depression or whether their onset was simultaneous. [30] In his report, Dr Roy suggests that the PTSD condition was originally caused by the childhood sexual abuse but had been reaggravated.23 [31] Dr Vladan Ljubisavljevic, a Consultant Psychiatrist diagnosed the Appellant with "symptoms of Major Depressive Disorder, recurrent episode and exacerbation of PTSD".24 [32] The Respondent accepts that the Appellant sustained a psychological injury, but the date of onset is not admitted.25 [33] Dr Ljubisavljevic said that it was likely that the Appellant's psychological injury had occurred by 6 December 2018 when she attended her general practitioner and was referred to the mental health care team, but that events after that had further aggravated it.26 [34] Dr Maria Martinez, a General Practitioner issued the Appellant with a Medical Certificate on 6 January 2019 for the period of 6 January 2019 to 13 January 2019 'due to work related stress'.27 [35] On 11 January 2019 the Appellant submitted a worker's compensation application and did not return to work.28 It was submitted by the Respondent that the Commission can comfortably find that events after 6 January 2019 were not causative.29 21 Chattin v WorkCover Queensland [1999] QIC 44; (1999) 161 QGIG 531. 22 Exhibit 8. 23 Ibid. 24 Exhibit 10. 25 Submissions of the Respondent filed on 1 March 2023, [21]. 26 TR3-18, LL12-27. 27 Exhibit 5. 28 TR2-57, LL1-5. 29 Submissions of the Respondent filed on 1 March 2023, [23]. -- 9 of 29 -- 10 Evidence [36] The Appellant was employed as a causal employee and worked at two different stores trading as Origin Kebabs. She commenced her employment at the Labrador store on approximately 20 September 2017 until March 2018.30 [37] The Appellant claimed that she was called 'fatso' and 'hey woman' by co-workers. [38] In or around late October or November 2017 during the evening shift the Appellant said the nightshift manager, Mr Abdullah Choush (Cavas), the son of the late director, Mr Usef Choush would speak to her in a disrespectful manner: What sort of things?--- He would - he would address me, "Hey, woman." "Hey woman, do this." "Hey woman, do that." And I have been called, as well, fatso. "If you come on shift a little bit earlier, do you think you're going to lose a couple of pounds, if you come and work?" So these were - - - and Mr Choush said all of these things to you?---That's correct.31 [39] The Appellant said Mr Abdullah Choush would continuously be disrespectful. She said she spoke with Mr Hamdullah Yegenler, the operations manager at the time and subsequently spoke to the late Mr Usef Choush regarding his son's way of speaking to her and how it was affecting her. After complaining something was done about it.32 [40] Following a meeting with Mr Yegenler, Mr Choush said he was told that he needed "… to be more professional and we need to be more obviously maybe conservative or professional in our manners and class talking to each other." Mr Choush was asked to apologise to the Appellant.33 [41] Mr Choush denied that he had called the Appellant 'fatso' or 'hey woman'. His evidence was that the Appellant was difficult to work with. He told the Commission that working with the Appellant was not pleasant. In examination-in-chief, Mr Choush said: MR CHOUSH: Her attitude and demeanour towards staff wasn't - wasn't very nice. MS BLATTMAN: And by "wasn't very nice", can you be more specific about what she would say or what she would do that wasn't very nice?--- MR CHOUSH: Just aggressive and bossy. Very controlling and demanding towards everybody. MS BLATTMAN: Can you give any examples?--- 30 Exhibit 5. 31 TR1-14, LL31-36. 32 TR1-15, LL9-25. 33 TR5-28, LL33-39. -- 10 of 29 -- 11 MR CHOUSH: Well, her - her not being the - not being a manager, and still kind of telling people what to do, and what sort of things they need to be doing, or assigning jobs and roles throughout the night when it's realistically not her job to do that.34 [42] In cross-examination, the Appellant accepted that it was only for a very short period of time of about two weeks that she was being called names and after that it ceased, and everything was fine until she left that store in March of 2018.35 [43] Mr Choush told the Commission that in his culture, religion, or his language, anyone older would be referred to as abla, meaning big sister, or abi, meaning big brother. He said that he would address the Appellant automatically as abla. Mr Choush said it was a natural thing to do, especially for someone who was older than him.36 [44] The evidence of Mr Ali Altintepe was to the same effect. He denied calling the Appellant 'fatso' or 'hey woman'.37 He would address the Appellant as abla, 'like, the elder sister in Turkish. Like, we show the respect, like the abla.'38 [45] By February and March 2018 there was a change in attitude by staff towards the Appellant.39 [46] The Appellant, in evidence, said a further incident occurred one day in mid-March 2018 when everyone was doing stocks with a young employee by the name of Hiria Otain: No, no, no?---"you're not my manager, bitch." So at that point, it was just as a teamwork, I said - I did say Hiria, whilst I'm doing this, could you please do this whilst I'm doing this? And I believe, as a teamwork in McDonald's or a Kentucky or wherever we work in fast food, we all share duties. But that's what she thought I claimed that I was a manager and I never did claim it to any customers or to staff but I did ask to help and that was the response I got and Abdula was in his office having his dinner and I went up to Abdula, holding my tears back, and I said Abdula, I cannot work here any longer. I am, at the time I think I was 47 or 48 years of age, being spoken to and treated in such a disrespectful manner that I cannot work and I left the shift. I believe it was a Saturday, which was just after dinner rush. It was around about 7, 7.30 pm and I went home in tears and I said to my husband I don't - I can't work with them. I need to speak to Abdula but I can't work with this condition. It's really, really upsetting me. Okay. Do you remember what date this was? Around about what time? --- It was around about in March. I can't remember. I think it was mid - early, mid-March, maybe. Yeah. Of 2018? --- Yes, that's correct.40 34 TR5-13, LL8-18. 35 TR2-79, LL22-33. 36 TR5-13, L48-TR5-14, L2. 37 TR5-28, LL40-46. 38 TR5-29, LL5-6. 39 TR1-15, LL34-35. 40 TR1-16, L46-TR1-17, L17. -- 11 of 29 -- 12 [47] Complaints were received from Ali Altintepe and Hiria Otain both of whom complained about the way in which they were treated by the Appellant, in particular her attitude towards them. [48] Mr Choush tried to manage the Appellant's conduct by 'pulling her aside' and talking to her. He said: … I tried to multiple times when there as an issue pull her aside, but every time it just resulted in her crying, and I couldn't - there was - couldn't figure out a solution. … I would always try to figure out what was going on or what the problem was on her side, and also on the other staff, but yeah. I didn't really get anywhere.41 [49] Following this the Appellant spoke to Mr Hamdullah Yegenler and explained the whole situation and said she could not work any longer as "it is a professional workplace therefore we should all have ethics and respect in accordance to workplace rules".42 [50] The Appellant said that Mr Yegenler then offered the Appellant the opportunity work at the Broadbeach store which she was reluctant to do but did and worked the day shift.43 She told the Commission that Mr Yegenler said he wanted to give the Appellant the opportunity to work at the Broadbeach store because he did not want to lose her44 and that there were more mature people at that store. The Appellant said she sought an assurance from Mr Yegenler that she would not be ill-treated, which he gave.45 [51] However, Mr Yegenler's evidence was that he needed to remove the Appellant from the Labrador store and wanted to give her another chance at the Broadbeach store. He told the Commission: MS BLATTMAN: Why did she cease working at the Labrador store, do you know? MR YEGENLER: She didn't actually leave the Labrador store herself; I actually transferred her to the Broadbeach store, Origin store in Broadbeach. MS BLATTMAN: And why did you do that? MR YEGENLER: Because there's the colleagues in Labrador store she couldn't actually get along with and also a situation that happened between Hirah and herself something that was upsetting. MS BLATTMAN: What happened? 41 TR5-13, LL20-26. 42 TR1-17, L38-TR1-18, L5. 43 TR1-17, L38-TR1-18, L19. 44 TR1-18, LL5-6. 45 TR2-23, LL1-6. -- 12 of 29 -- 13 MR YEGENLER: I wasn't there but what I heard was - or learned, I believe that apparently Fatime actually threw a plate to Hirah and that just - that was why I thought that I needed to decide to put her into another store, Fatime.46 [52] The Appellant said the next incident occurred on the evening of 16 June 2018. She recalled that she was running late to prepare the evening stock and offered to work back until 6 o'clock: … and I said, look, it's dark time now, anyway, it's after 5 o'clock. Now, at this time, whatever you give me, I will not go into that alleyway on my own because I'm scared. And even after that, my explanation, he was becoming - raising his voice and saying, you have to do it, you must do it, it is your job. And I said, look, I was using his name to the effect, I said Ors, as his name is, Mr Arielmas's, I said, Ors, look, as you know and are aware, on Sunday that just went past, my car was parked in that alleyway and some hooligans had jumped onto the windscreen and smashed the windscreen. So it is unsafe for me to go there after dark. And secondly, by neighbouring stores, I've been told, few weeks prior, that a woman had been assaulted. So here I am telling Mr Arielmas my fear, my vulnerability, and the reason that it is after dark on that date, which I have the sunrise and sunset for that date, which I printed out from Google, it's not as he indicates. So he then to the effect, when I said that, you know, my car was damaged and the lady was apparently - the lady was assaulted. To the effect that he said to me, your Honour, so that you don't get raped, you want me to get raped?47 [53] The Appellant said, "that was my flashbacks of my past trauma … and I was frozen". She went home and immediately informed Mr Yegenler who had been called by Mr Eryilmaz (Arielmas). Mr Yegenler asked the Appellant to wait for Mr Sulayman, the store manager to return in a further six to seven weeks to resolve it.48 [54] The Appellant alleges in her Statement of Facts and Contentions ('SFC') that Mr Oguz Eryilmaz, the Manager of the Origin Kebab store said to the Appellant words to the effect that, "so you don't get raped you want me to get raped instead". [55] Mr Eryilmaz told the Commission that he arrived at the store at approximately 5.00 pm to commence his shift. When he arrived there were "rubbish bags that was starting from entry to kitchen…on the floor".49 He said there were three or four bags of rubbish tied up and he asked the Appellant to throw them out. The Appellant replied that "… she's not responsible to throw the rubbish".50 He then asked Kritima, a junior member of staff to help him, but she said she had to first seek permission of the Appellant.51 [56] Mr Eryilmaz asked the Appellant whether she or Kritima could come with him to throw it out. He said, "I did ask her we would work together and …take out the rubbish 46 TR6-17, L35-TR6-18, L1. 47 TR1-20, L42-TR1-21, L10. 48 TR1-21, L12-TR1-22, L31. 49 TR4-56, LL20-21. 50 TR4-54, L25. 51 TR4-71, LL1-3. -- 13 of 29 -- 14 together".52 The Appellant refused on the basis that she or Kritima would be attacked.53 This upset Mr Eryilmaz because of the inference that he would be the attacker.54 [57] He said to the Appellant that they also throw out the rubbish at 3.00 am on night shift, and they could also be attacked at that time. He then took out the rubbish himself, alone.55 [58] The Appellant said that as a consequence of the 'rubbish incident' she lost her ability to sleep, concentrate or focus.56 [59] In cross-examination, the Appellant could not recall whether she used the word "rape" or "assault": You're the one who used the word rape, weren't you? You were the one who said the word rape?-- -Rape, assault, in Turkish, I can't remember. Okay. Well --- HIS HONOUR: You can't remember who said that? --- No, no. Rape or assault - in Turkish, it was, so. Saldırı or tecavüz. See --- MS BLATTMAN: Rape and assault must have different meanings in Turkish, surely? --- Yeah, yeah, I - I'm trying to remember which one I'd used, that's the thing, because I've been dealing everything in English now, it's, you know. HIS HONOUR: So they're words you --- ? --- It's rape. It would be rape. So they're words you used, were they? --- THE APPELLANT: They're words I've used. I would've probably - I mean, I don't - I - I really trying very hard to recall. It's been a - some time, so those, Ms Blattman. Rape and assault, I mean. I would say tecavüz. Tecavüz would be rape in Turkish, yes. MS BLATTMAN: So you were the first person in that conversation to use the word rape. Do you accept that? --- THE APPELLANT: I really - as I said before, I even said I cannot say, you know that. I really am not certain how I - which terminology I had used at the time.57 [60] In cross-examination, the Appellant accepted that she was already living in fear of her childhood experience prior to the 'rubbish incident' and that had been intensified, by the fact that her car had been vandalised in the alley and she had been told by someone else that a woman had been assaulted in the alley.58 52 TR5-6, LL20-22; TR5-6, LL1-3. 53 TR4-55, LL3-5. 54 TR4-73, LL14-19. 55 TR4-56, LL6-7. 56 TR2-41, LL34-36. 57 TR2-87, LL1-22. 58 TR2-87, L45-TR2-88, L5. -- 14 of 29 -- 15 MS BLATTMAN: You're the one who used the word rape, weren't you? You were the one who said the word rape?---Rape, assault, in Turkish, I can't remember. Okay. Well - - - HIS HONOUR: You can't remember who said that?---No, no. Rape or assault - in Turkish, it was, so. Saldırı or tecavüz. See - - - MS BLATTMAN: Rape and assault must have different meanings in Turkish, surely?--- Yeah, yeah, I - I'm trying to remember which one I'd used, that's the thing, because I've been dealing everything in English now, it's, you know. HIS HONOUR: So they're words you - - -?---It's rape. It would be rape. So they're words you used, were they?---They're words I've used. I would've probably - I mean, I don't - I - I really trying very hard to recall. It's been a - some time, so those, Ms Blattman. Rape and assault, I mean. I would say tecavüz. Tecavüz would be rape in Turkish, yes. MS BLATTMAN: So you were the first person in that conversation to use the word rape. Do you accept that?---I really - as I said before, I even said I cannot say, you know that. I really am not certain how I which terminology I had used at the time. All right?---If it was me, so if I - - - HIS HONOUR: But you used - - - … HIS HONOUR: - - - either those words at that time?---That's right. First up?---I – yes, either those words at that time, your Honour.59 [61] During that time the Appellant said there were issues with changes of staff's attitudes of the nightshift with the handing over between shifts and it was becoming worse.60 [62] Notwithstanding that the Appellant contends that the 'rubbish incident' was a major incident as far as she was concerned61 she continued to work for nearly an hour, did not raise the incident with her husband, and did not raise the issue with her general practitioner until sometime in January 2019. In cross-examination, it was put to the Appellant: MS BLATTMAN: Isn't it the case that the real source of distress for you was your car being vandalised in the alley and being told by another shop owner that a woman had been assaulted in the alley?--- APPELLANT: Sorry, repeat the question again. 59 TR2-87, LL1-32. 60 TR1-22, L44-TR1-23, L6. 61 TR2-86, LL28-32. -- 15 of 29 -- 16 MS BLATTMAN: The real source of stress for you in relation to the issue of taking the rubbish out, the real source of stress for you was the fact that someone had vandalised your car in the alley and that you'd been told that someone else had been assaulted in the alley?--- APPELLANT: Well - - -62 [63] Other issues arose throughout her employment such as taking things out of the storeroom and the alleyway into the shop; gas burners left on; chairs which used to be stacked on the ground being stacked onto the tables and all of these were because of the staff being slack and making her job very difficult as they were intentionally done.63 The Appellant said she complained about numerous maintenance issues at the store. The evidence does not suggest that these issues contributed to the aggravation of the Appellant's underlying condition. Nor does the evidence suggest that these factors featured in the history taken by either Dr Roy or Dr Ljubisavljevic. [64] The Appellant said Mr Yegenler had not supported any of her concerns and there were no investigations into any of these issues.64 Mr Yegenler's evidence was that when repairs had to be undertaken then he would contact the electricians or the plumbers so as the repairs could be done immediately. [65] The Appellant told Dr Ljubisavljevic that she counted the till which came up short $150.00. She said that the General Manager asked her to balance the till at the end of each shift. In his report, Dr Ljubisavljevic records the following: … She explained that the general manager asked her to balance it. She says that the evening shift manager replied that was good as that way they could not blame Mrs. Firat for money missing from the till. When she enquired further she found out that $150 went missing. She says that later on, she found money in the till. She says that she felt that she deserved an apology as nothing happened. …65 [66] The Appellant said she was offended by the comment.66 She said she raised the issue with Mr Yegenler and he told her not to worry about it.67 [67] In cross-examination the following exchange took place: APPELLANT: - - - cash shortage in the register and at that point, Mr Yegenler, Hamdullah Yegenler, asked me from that day onwards to balance out the registers. HIS HONOUR: Yes. 62 TR2-86, LL34-41. 63 TR1-23, L41-TR1-24, L20. 64 TR1-24, L42-TR1-25, L3. 65 Exhibit 10, [14]. 66 TR2-98, L25. 67 TR2-98, L29. -- 16 of 29 -- 17 APPELLANT: So - and I said Rajat, this is what Mr Humdullah's asked me to do. He said that'd be great because that way we don't have to blame you if there's any money mistake. HIS HONOUR: So that's it. APPELLANT: And that was it. And I - that, you know, your Honour, that, to me, I mean, like, it was army gather. Everyone had - see, I can't - - - HIS HONOUR: But there was no accusation or no - that you'd done anything wrong, was there? APPELLANT: It was the way, your Honour, how they were bring forward the attitude, the behaviour of - of them. Like I said - like we said, I believe and in my - I see it was done deliberately, you know? But do I have evidence of his doing - of his having it done. HIS HONOUR: Yes. APPELLANT: No, your Honour, I don't It's - -.68 [68] The Appellant also gave evidence in respect of a change of roster on 24 December 2018 whereby Mr Yegenler had appointed Mr Eryilmaz as the manager, and she did not acknowledge his management. It was the Appellant's belief that Mr Eryilmaz was on a bridging visa as a refugee and has no qualifications in Australia.69 [69] In her evidence the Appellant said: And one of them was Mr Arielmas.( Eryilmaz) He really wanted that, but I believe and I know, your Honour, that to take on such a responsibility - maybe, maybe not, but he - I know - I've got a cert IV in hospitality. Certificate IV in Hospitality. I have a certificate in business; Certificate III in Business. I have a food and safety certificate as well for hospitality, so therefore I am fully conscious and aware of not - as in - but enough knowledge - enough knowledge for - to do those - take that task on of WHS on handling.70 [70] On 25 December 2018 the Appellant said she had a panic attack in the kitchen of the store and was taken to Gold Coast University Hospital. It was said that it was Mr Eryilmaz that led to the panic attack: APPELLANT: … I was doing my morning routine before the lunch rushes come through, checking up all the final - those things, and so was Sharmila. Mr Arielmas said, "Do these things" and I said, "I'll finish my duties first, and when I've -- - HIS HONOUR: So what do you mean, "do these things". Did he ask --- APPELLANT: It was --- HIS HONOUR: Did he ask you to --- 68 TR2-61, LL9-33. 69 TR1-28, LL12-36. 70 TR2-45, LL17-23. -- 17 of 29 -- 18 APPELLANT: --- his task that he wanted me to complete for him. HIS HONOUR: Okay. What task did he want you to complete? APPELLANT: He wanted me to do a - when I say restocking - he is part of the management, sort of, because he was supposed to be appointed as a manager by this point. So I said, "I'll do it when I finish my duties first because that's my --- HIS HONOUR: So he wanted you to restock what? APPELLANT: I can't remember what it was. HIS HONOUR: Okay. APPELLANT: It was in - I think it was - it was to - from the - from the kitchen, you know. To do something in the kitchen. HIS HONOUR: Okay. APPELLANT: I remember that. HIS HONOUR: Yes. And you said to him --- APPELLANT: And I said - I really - I said, "Look, I've got to do my tasks first. APPELLANT: --- because that's what I'm there for". HIS HONOUR: And what did he say in response to that? APPELLANT: And he said, "I'm – I'm telling you. I'm asking". I was, like, "Okay. It's okay for me". "Fatime, do it". But again I can't prove it - you're going to say to me, your Honour --- HIS HONOUR: No, no, no. But --- APPELLANT: But at the time --- HIS HONOUR: But he asked you to do something. APPELLANT: Yes. HIS HONOUR: And you said, "Let's wait" --- APPELLANT: And I said, "I can't do it because --- HIS HONOUR: ---"till I finish this".71 [71] The Appellant was questioned in respect of her under reporting to Centrelink. She was asked: 71 TR2-51, L10-TR2-52, L21. -- 18 of 29 -- 19 HIS HONOUR: And did you report the hours in which you worked?---Not all of them. Okay?--- APPELLANT: Because I've burnt myself for somebody else. I'm going to say this, your Honour. That I've given the opportunity - let's declare it. And in the voice recording he says, I wanted you to benefit. I didn't want the benefit. I was working. HIS HONOUR: Well, you could have declared it?--- APPELLANT: I'm scared. HIS HONOUR: Why?--- APPELLANT: I'm scared I'll lose my job. Or - I was just scared. Just scared.72 [72] In or about August 2017, the Appellant had an ultrasound that showed a breast lesion, and she was referred for a core biopsy. However, it does not appear that the Appellant had that core biopsy performed; however, she told a colleague at the Broadbeach store that she had, or maybe had, cancer, and was distressed about that. [73] The Appellant denied in cross-examination that she had told anyone that she had breast cancer.73 [74] Mr Suleyman Cangokee told the Commission that upon his return from holidays, he recalled the Appellant telling him that she had visited the doctor on two or three occasions and that she had cancer. He said that he was upset when he heard the news. He described the Appellant's demeanour … as upset and worried and she was very upset and she was very panicky74… she was worried and she cried a few times actually.75 Medical Evidence [75] A key issue in this appeal is whether the Appellant suffered a work-related "injury". To resolve that issue, it is necessary to understand the Appellant's medical history in relation to the aggravation of her pre-existing psychological or psychiatric condition and to assess the expert medical opinion evidence. Dr Samit Roy 72 TR2-111, LL18-27. 73 TR2-74, LL31-46. 74 TR6-8, LL21-22. 75 TR6-8, LL27-28. -- 19 of 29 -- 20 [76] Dr Samit Roy, Consultant Psychiatrist works at both the Helix Heath Specialist Clinic, a private mental health outpatient clinic and the Gold Coast University Hospital inpatient mental health unit. [77] He provides care for the Appellant as a specialist Psychiatrist and said the Appellant has been diagnosed with Major Depression, Anxiety Disorder and PTSD, based on DSM V criteria.76 [78] Dr Roy said the PTSD condition originally was caused by childhood abuse the Appellant had sustained and that PTSD is essentially a kind of anxiety disorder, and depression often occurs in conjunction with it. He told the Commission that it can be difficult to completely tease them apart.77 [79] In his report dated 21 May 2020,78 Dr Roy says that the Appellant required an admission in early 2019 because of suicidal thoughts and anxiety symptoms, which had been triggered by getting psychologically retraumatised (the original trauma had occurred in her childhood) at her workplace. [80] The report of Dr Roy is essentially focused on the Appellant's ability to engage in employment. Whilst it does not assist in assessing the work-related causes of her claimed injury, it does indicate that at the time of the examination on 14 May 2020, the Appellant continued to have symptoms of anxiety, depression, emotional instability and PTSD. What the report does highlight is that "[e]ven simple things can trigger her into an extreme emotional state … ."79 [81] The incident which occurred in June or July 2018 about putting out the rubbish put a lot of pressure on her, and that is what started the retriggering of her past trauma.80 [82] Dr Roy agreed with the proposition that if the Appellant was not in fact made to take the rubbish out that day, and rather her manager took it out, that would deprive the rubbish incident of some of its causal potency. [83] Dr Roy agreed that the fact that the Appellant's car had been vandalised in the alley, and that she had been informed that a woman had been raped or assaulted in the alley, were also significant contributing factors to the reaggravation of her PTSD, although he considered them secondary to the rubbish incident.81 [84] The Appellant required an admission in early 2019 because of suicidal thoughts and anxiety symptoms, which was said to have been triggered by getting psychologically 76 Exhibit 8. 77 TR3-4, LL11-30. 78 Exhibit 8. 79 Exhibit 8, p 2, [1]. 80 TR3-5, LL20-35. 81 TR3-6, LL15-21. -- 20 of 29 -- 21 retraumatised. Dr Roy's evidence was that the original trauma had occurred in the Appellant's childhood. He was asked in cross-examination whether he could, having regard to the history given to him, identify the triggering event. Dr Roy's evidence was: MS BLATTMAN: … Yeah. And was that the incident that occurred in June or July 2018 about putting out the rubbish?--- DR ROY: Yes, what she had said to me was that in June 2018 our car had got vandal - vandalised in the alleyway close to her place of work, and then consequently she had been - according to her, forced to go there into the alleyway, which was dark and somewhat menacing to her, and she was forced to go there by her boss, after dark, to throw some rubbish. And, apparently, a lot of pressure was put on her, and that's what started the retriggering of her past trauma. MS BLATTMAN: And so is it the critical feature, in your opinion, which gave it the - the sort of causative potency, was being forced to take the rubbish out into the alleyway?--- DR ROY: I think there are a couple of psychological factors involved. One was the actual, I guess, pressure put on her. But I think there was something deeper than that, because also the feeling of being not heard, where she felt unsafe, but no one was listening to her, you know, her internal pain. And because that, I think - was actually psychologically destabilised her. The feeling of helplessness and powerlessness, which you often see in people who have had childhood trauma.82 [85] Dr Roy said "definitely its possible" that any or all of the external matters identified may also have been contributing factors to the reaggravation of the PTSD, the anxiety and depression.83 [86] Dr Roy also said that had he known those things at the time it would have changed his opinion because "… everything would add up, I would imagine. If someone were to have multiple stressors, then definitely there would be an added factor which we'll have to take into account".84 [87] Dr Roy said his major focus was work-related stress, however factors relating to external challenges including the well-being of the Appellant's son and financial difficulties would have been an added factor to take into account if someone were to have multiple stressors.85 Dr Vladan Ljubisavljevic [88] In his report Dr Vladan Ljubisavljevic, Clinical Psychiatrist stated that in the context of reported bullying and harassment by the work colleague, the Appellant developed 82 TR3-5, LL24-39. 83 TR3-8, LL30-34. 84 TR3-9, LL21-23. 85 TR3-8, L48-TR3-9, L24. -- 21 of 29 -- 22 symptoms of Major Depressive Disorder, recurrent episode and exacerbation of PTSD related to childhood trauma in the second part of 2018. He expressed the opinion that the injury was an aggravation of the pre-existing condition. Dr Ljubisavljevic said the reported bullying and harassment by the work colleague and the termination of employment were work related factors.86 [89] In cross-examination, Dr Ljubisavljevic agreed the three incidents, the rubbish incident, the smashed windscreen, the alley in which a woman had been raped and the shed that was located in the alley (similar to the shed where the Appellant had been subjected to child sexual abuse) either together or separately were significant contributors to the reaggravation of her PTSD.87 [90] In cross-examination, Dr Ljubisavljevic was asked: MS BLATTMAN: And in relation to that incident, obviously it's contingent on the version of events that she gave you?--- DR LJUBISAVLJEVIC: Yes. MS BLATTMAN: And can I ask you to also accept as a fact - and I think she's already relayed some of this to you herself - that shortly prior to this incident, this rubbish incident that's the subject of paragraphs 8 and 9 of your report - the front windscreen of her car had been smashed by vandals in the alley behind the store, you recall her telling you that?--- DR LJUBISAVLJEVIC: Yes, yes. I think it is somewhere in the report, yeah, correct. MS BLATTMAN: Yes, and her evidence-in-chief was that this caused her distress?--- DR LJUBISAVLJEVIC: Yes. MS BLATTMAN: Secondly, that shortly prior to this rubbish incident, Mrs Firat had been informed that a woman had been raped in that alley and this also caused her distress?--- DR LJUBISAVLJEVIC: Yes. MS BLATTMAN: And further that the shed that was located in the alley was similar to the shed in which she'd been subjected to child sexual abuse?--- DR LJUBISAVLJEVIC: Yes. MS BLATTMAN: Would you consider that those three factors, either together or separately, were also significant contributors to the re-aggravation of her PTSD?--- 86 Exhibit 10, Independent Medical Examination Report of Dr Vladan Ljubisavljevic dated 18 August 2019. 87 TR3-17, LL4-5. -- 22 of 29 -- 23 DR LJUBISAVLJEVIC: Yes.88 [91] Dr Ljubisavljevic agreed that the financial issues would have also played a part.89 He further agreed that the 'breast lump' issue may have been a significant contributing factor if there was evidence that it was still causing her stress in 2018.90 [92] In relation to the allegation of theft, Dr Ljubisavljevic was asked: MS BLATTMAN: In relation to that one, is it correct to say that the feature of this that gave it causative potency, in your view, was it either implicitly or expressly being accused of theft, of responsibility for that missing money, is that right?--- DR LJUBISAVLJEVIC: Yes, yes, that would be my understanding of what would have caused the distress, yes. MS BLATTMAN: And so if she wasn't at all accused of theft, either expressly or implicitly, that would deprive this incident of a causative potency, wouldn't it?--- DR LJUBISAVLJEVIC: Yes, yes. I - I - I think - I think that a lot of it would be a personal interpretation of events but - - - MS BLATTMAN: Yeah?--- DR LJUBISAVLJEVIC: - - - I think obviously if - if - if there is no evidence that something happened then it's more personal interpretation rather than events. Yeah, it becomes a matter of perception rather than the reality?.91 [93] Dr Ljubisavljevic accepted that the major cause (the original cause) of the Appellant's PTSD was her childhood sexual abuse.92 Findings and Conclusion [94] It is apparent from the outline of issues earlier in these reasons and the summary of evidence that it is necessary to decide: (a) the circumstances in which the alleged injury occurred (and hence whether her injury arose out of, or in the course of, her employment); (b) whether the Appellant suffered an injury; and 88 TR3-16, L36-TR3-17, L5. 89 TR3-19, LL27-42. 90 TR3-20, LL9-20. 91 TR3-17, LL11-23. 92 TR3-17, LL26-28. -- 23 of 29 -- 24 (c) if so, whether the Appellant's employment was a significant contributing factor to the injury. [95] The SFC is an important document in the conduct of an appeal under the Workers' Compensation legislation. It alerts the other party to the case it will have to deal with, and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. A party will be bound by its SFC and may not lead evidence which is not relevant to the identified issues.93 [96] The SFC filed by the Appellant identified a number of bases for asserting that her employment contributed to her workplace injury. The Appellant states: 32. I submit that I experienced bullying, harassment, accusation, discrimination and derogatory comments, unreasonable management actions, adverse action, coercion, undue influence or pressure, misrepresentation and unfair dismissal while employed by Filla from August 2017 to 06 January 2019. [97] Whilst the Appellant raises a multitude of complaints, she asserted in her SFC that "the major significant contributing factor" to her alleged psychological injury was when "there was a comment made towards myself from a staff member to the effect of "so you don't get raped you want me to get raped instead". [98] In the SFC, the Appellant, under the heading Did I (the 'Worker') sustain a Personal Injury? the Appellant states: 36. On 21 January 2019, Dr Martinez provided a report to WorkCover where she advised that my employment was the major significant contributing factor to the cause of injury. Dr Martinez further opined that the triggering event was when a comment was made towards myself from a staff member to the effect of "so you don't get raped you want me to get raped instead". This event is the major significant contributing factor. [99] Further, in her SFC the Appellant, under the heading Was Employment a Major Significant Contributing Factor to the Injury? the Appellant states: 40. I rely again upon report Dr Martinez provided to WorkCover on 21 January 2019 and Dr Samit Roy. In particular, noting that the triggering event was when there was a comment made towards myself from a staff member to the effect of "so you don't get raped you want met o (sic) get raped instead". This event is noted to be the major significant contributing factor. [100] In her evidence, the Appellant said that a statement was made to her along the lines of, "[y]ou're not my effing manager, bitch" by a junior employee. The Commission heard that this comment was the 'worst' example of derogatory comments made to her.94 It was 93 Yousif v Workers' Compensation Regulator [2017] ICQ 004. 94 TR2-19, LL24-26. -- 24 of 29 -- 25 further asserted that co-workers would call the Appellant 'hey woman' and 'hey fatso'. The comments allegedly lasted approximately for two weeks and then desisted.95 [101] Both Mr Choush and Mr Altintepe denied making the derogatory comments. I accept that evidence and observe that both witnesses gave evidence which suggested that they had been respectful to the Appellant. The evidence was that the Appellant was addressed as abla, meaning big sister in Turkish as a mark of respect for an older person. [102] I also accept that there were tensions within the workplace and the Appellant was sometimes difficult to work with. [103] The Appellant, in my view, tended to exaggerate her evidence. [104] The history given to Dr Roy was an example of such an exaggeration. Dr Roy recorded a history which suggested that the Appellant had been forced by 'her boss' against her will to empty rubbish bins, after dark in an alleyway behind the shop. It was suggested in Dr Roy's evidence that "…a lot of pressure was put on her, and that's what started the retriggering of her past trauma."96 [105] However, as the evidence unfolded before the Commission, the Appellant was not forced to empty the rubbish; go into the alleyway against her will; nor dispose of the rubbish. That account to Dr Roy by the Appellant was untrue. [106] Moreover, the words attributed to Mr Eryilmaz, namely, "…so you don't want to be raped and you want me to get raped" were not the words used by him. Indeed, the evidence of the Appellant was that she was the first person to use the word 'rape'.97 Mr Eryilmaz denied ever saying the words attributed to him by the Appellant, evidence which I accept. [107] External factors played on the mind of the Appellant, in particular the health of her son and the associated needs for his care; the fact that she was the sole source of income for the family; that she was the recipient of a carers' pension and had made a false declaration to Centrelink understating the hours that she had worked; and that in or about August 2017 the Appellant underwent an ultrasound that showed a breast lesion, and she was referred for a core biopsy. Whilst it does not appear that the Appellant underwent a core biopsy, she told a colleague at the Broadbeach store that she had, or maybe had, cancer during her employment at Origin Kebabs.98 [108] The medical history given to Dr Roy shaped his professional opinion. It was apparent that Dr Roy was not given a complete and accurate history. Dr Roy was asked: 95 TR2-75, LL22-29. 96 TR3-5, LL29-30. 97 TR2-87, LL1-32. 98 TR6-8, LL13-15. -- 25 of 29 -- 26 HIS HONOUR: Doctor, would that have changed your professional opinion, had those factors been mentioned to you, though?--- DR ROY: Most certainly, because everything would add up, I would imagine. If someone were to have multiple stressors, then definitely there would be an added factor which we'll have to take into account. Yeah99 [109] Dr Roy agreed with the proposition that if the Appellant was not in fact made to take the rubbish out that day, but rather her manager took it out, that would deprive the rubbish incident of some of its 'causal potency'.100 [110] Dr Roy said that 'definitely its possible' that the external factors put to him in cross-examination may also have been contributing factors to the reaggravation of the PTSD, the anxiety and depression. [111] The Appellant misstated facts to Dr Ljubisavljevic. She told Dr Ljubisavljevic that, ' … the store manager had given strict instructions on how a female was not to go into the back alley and that only men were allowed to go'.101 Neither she nor Mr Cankogee gave that evidence. The Appellant also told Dr Ljubisavljevic that Mr Eryilmaz had said the other staff were 'not her slaves', which was not her evidence nor the evidence of Mr Eryilmaz. It was also suggested to Dr Ljubisavljevic that the Appellant was 'distressed' and 'numb with shock' after Mr Eryilmaz had allegedly said 'so you don't want to get raped, and you want me to get raped'. As noted previously, the evidence did not support such an assertion. [112] Having accepted that the version of events given by Mr Eryilmaz and on the Appellant's own evidence it must follow therefore that the actions which she asserted constituted a stressor were found not to have existed. Moreover, as the psychiatrist's opinion was based on an unaccepted set of assertions, there has been no causal link established. [113] In Misevski v Q-COMP102 Hall P was confronted with a case in which there had been allegations made about conduct where allegations "were found to be without substance". His Honour wrote: [30] … One consequence of course is that those transactions cannot have contributed to the development of her psychological condition. A transaction which did not occur cannot have contributed to the development of anything. Whilst s. 32(5)(b) of the Act refers to 'perception' it refers to perception of action actually taken.103 [114] Dr Ljubisavljevic accepted in cross-examination that the financial pressures arising out of being the "… sole family earner and having to reapply possibly to Centrelink, would 99 TR3-9, LL20-24. 100 TR3-6, LL1-3. 101 Report of Dr Vladan Ljubisavljevic dated 18 August 1019, Exhibit 10, [8]. 102 [2009] ICQ 2. 103 Misevski v Q-COMP [2009] ICQ 2. -- 26 of 29 -- 27 have played a part."104 Dr Ljubisavljevic further agreed that the identified external factors, such as the smashed windscreen, the advice that a woman had been raped in the alleyway, and the shed located in the alleyway was similar to the shed in which the Appellant was subjected to childhood sexual abuse, either separately or together were significant contributors to the re-aggravation of the Appellant's PTSD.105 [115] It is apparent from the evidence that the Appellant was affected by the vandalisation of her car in the alleyway behind the shop and that it had been reported to her that a woman had been raped or assaulted in the laneway. [116] It is also clear from the evidence that the Appellant omitted to give to either Dr Roy or Dr Ljubisavljevic a complete history of the external factors impacting on her life. [117] The medical evidence relied on must be such as to satisfy the Commission on the balance of probabilities that the worker's personal injury arose out of or in the course of employment and that the employment was a significant contributing factor to the injury. A mere theoretical possibility that the injury was caused by the employment, and it was a significant contributing factor does not go beyond speculation.106 [118] Having considered all the evidence and submissions, I am satisfied that: (a) on about 6 January 2019 the Appellant suffered an aggravation of a pre-existing psychiatric injury, namely PTSD; (b) the aggravated psychiatric injury was diagnosed as a Major Depressive Disorder, Anxiety Disorder and PTSD;107 and (c) the aggravation was caused by a range of external (non-employment) factors including the smashed windscreen; the alley in which a woman had been raped; the shed located in the alley (similar to the shed where the Appellant had been subjected to childhood sexual abuse); the health of her son and the associated needs for his care; the fact that she was the sole source of income for the family; and that she was the recipient of a carers' pension and had made a false declaration to Centrelink understating the hours that she had worked. [119] Those findings lead inevitably to consideration of the key issue, namely whether the injury 'arose out of, or in the course of, employment' and whether the employment was 'a significant contributing factor to the injury'. That is a question of fact and law. 104 TR3-20, LL35-38. 105 TR3-16, L39-TR3-17, L5. 106 Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 156. 107 Exhibit 5. -- 27 of 29 -- 28 [120] The Commission must focus its inquiry on the evidence contemporaneous with the period of aggravation. As observed by Hall P in CS Energy Limited v Q-COMP: … A s. 32(3)(b) "injury" by way of "aggravation" is "an injury only to the extent of the effects of the aggravation", s. 32(4). In a comparable legislative setting, it has been held by the Court of Appeal of New South Wales in Murray v Shillingsworth (2006) 68 NSWLR 451, that it follows that in working out whether the employment was "a substantial contributing factor" one has to focus upon the aggravation and not upon the underlying condition which should not be permitted to dilute the impact of the employment upon the aggravation … .108 [121] For a conclusion to be reached that an injury could be said to arise out of employment there must be a causal connection between the employment and the injury. Whilst it is not essential for the Appellant to demonstrate that her employment was the only cause of the injury, her employment must be a real or effective cause of the injury not merely the setting or background in which the injury occurred.109 In my view based on the evidence before the Commission, it was not. [122] An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.110 Although the words 'arising out of' do not require the direct or proximate relationship which would be necessary if the phrase used was 'caused by', there must be some causal or consequential relationship between the worker's employment and the injury.111 [123] An injury "in the course of employment" means an injury is sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.112 [124] In the present case, the significant contributing factor or factors were external to the Appellant's employment. There was in my view no causal or consequential relationship between the Appellant's employment and the injury. [125] I have, for the reasons above determined that the Appellant's appeal ought to be dismissed. I cannot be satisfied to the requisite standard that the aggravation of the Appellant's pre-existing psychological or psychiatric injury arose out of, or in the course of, her employment and the employment was a significant contributing factor to the injury. [126] It must follow therefore that the appeal is dismissed. 108 [2008] ICQ 2; 188 QGIG 6. 109 Linke v Simon Blackwood [2014] QIRC 181 110 Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J). 111 Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 (Hall P); WorkCover Queensland v Curragh Queensland Mining Pty Ltd [2002] ICQ 59; (2003) 172 QGIG 6, 7 (Hall P). 112 Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP [2010] ICQ 27, [3] (Hall P); See also: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. -- 28 of 29 -- 29 [127] I make the following orders: Orders 1. The appeal is dismissed. 2. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 11 February 2020 is confirmed. 3. The parties shall exchange written submissions on the question of costs by 4.00 pm on 28 June 2024. Unless otherwise ordered, the question of costs shall be determined on any written submissions received and without further oral hearing. -- 29 of 29 --