Workcover appeal fails due to the undertaking of reasonable management action

Workcover appeal fails due to the undertaking of reasonable management action

A Fly in/Fly out healthcare worker has failed in her appeal against a rejected WorkCover Queensland (WCQ) claim. The Queensland Industrial Relations Commission determined that her personal injury arose from reasonable management action in response to a non work-related injury.

The employee worked for the Apunipima Cape York Health Council (`the Health Council’), a not-for-profit organisation providing health care services in eleven communities across Cape York in Far North Queensland. Since April 2017, she had been employed as a Social and Emotional Wellbeing Counsellor (`the Counsellor’). The role required her to fly in and out of the Hope Vale region for four days each week, with the fifth day spent in Cairns.

The Counsellor suffered a personal injury, diagnosed as an adjustment disorder with mixed depression and anxiety. She claimed eight work-related incidents contributed to her condition. The initial assessment from WCQ denied her claim, and she appealed that decision.

The initial incident was an alleged verbal assault from a colleague regarding the counsellor smoking after hours in the vicinity of her work provided accommodation. She claimed to have suffered severe stress and anxiety from the incident, compounded by her claim that the Health Council management did not deal with her complaint against the co-worker and the resulting breakdown in several work relationships that followed. She also claimed that management did not adequately manage her return to work from a non-related shoulder injury, which further exacerbated her condition.

The Health Council submitted that they were undertaking an assessment of her complaint, but it had been delayed by the ongoing absences of several key staff, including the Counsellor. They had also determined that she was unable to return to her normal duties due to the restrictions resulting from her shoulder injury. In particular, her physical limitations prevented her from travelling safely. Further, funding for the Health Council required all counselling to be undertaken face to face in the local communities, which meant the Counsellor could not utilise Zoom or similar platforms to perform the role. There were also no suitable duties available for her in the Cairns office.

While accepting that her employment was the major significant contributing factor to her personal injury, Deputy President John Merrell determined, “that her personal injury arose out of or in the course of reasonable management action taken in a reasonable way by her manager”. The consequence is that her injury is not a compensable condition under Queensland legislation.

In the Deputy President’s assessment, the Health Council displayed reasonable management action towards the Counsellor at all times. As he noted, “it is the reality of the management action that must be examined, not an employee’s perception of the management action”.

 In a further blow to the Counsellor, the Deputy President ordered her to pay the legal costs of WCQ.

D v Workers’ Compensation Regulator [2021] 8 June 2021

For questions about WorkCover, personal injuries, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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