Written by Peter CarterFebruary 11, 2022
A vulnerable worker has rolled a workers’ compensation provider on its rejection of her statutory psychological injury claim arising out of daily abuse received from the customers she was required to deal with in the animal control division of the Gladstone Regional Council.
Prior to starting work in that division in May 2015, Aleesha Skinner’s “previous normal” was described by husband Andrew – a fitter in the LNG production plant on Curtis Island – as “always happy to go to work” and “excited about her job”.
She initially kept the unpleasant features of her work to herself but gradually opened up to her family about the “torrent of abuse” directed to her at work.
Her calls about unpaid dog registrations and animal noise complaints were frequently met with threats to her safety – including one caller threatening to shoot her – and other aggressive and demeaning behaviour.From July 2016 she sought treatment from her GP for a stress condition which escalated to anxiety and panic attacks from March 2017 and to “worsening depression” by July that year.
The record of her consultation with her psychiatrist Dr Lynne Steele – whom she had also consulted a decade earlier as a teenager – in early August confirms “suicidal ideation”. She ceased work a few days later.
Aleesha lodged an application for assessment of permanent impairment in June 2019 which was rejected by Local Government Workcare. It claimed there was insufficient evidence that the occupational abuse she had suffered was the “major significant contributing factor” of her psychiatric condition.
When the matter came before the Queensland Industrial Relations Commission, Industrial Commissioner Roslyn McLennan conducted the appeal as a hearing de novo.
The Commissioner heard evidence from Dr Steele that Alicia had a long-standing history of depression through her teenage years. She nevertheless considered the recent presentations to be quite different and swore that her current condition was a “completely different type of depressive illness”.
Colleague Trevor Lotz – acknowledging the pre-existing history of anxiety and depression – concluded she had a relapse “as a result of exposure to difficult clients telephonically and in person”.
On the other hand Jennifer Gunn – also a consultant psychiatrist – ruled out a psychiatric injury concluding instead that her “Recurrent Major Depressive Disorder” was the same condition she suffered from as a teenager that had simply recurred.
Critical to the issue of whether her condition was that contended for by Dr Gunn and her employer i.e. “recurrent”; or that supported by her colleagues i.e. an injury, was whether the exhaustion that coincided with birth of second child was in the nature of postnatal depression.
In the absence of any records of such diagnosis or of antidepressant medication being prescribed at that time, Commissioner McLennan rejected that contention and concluded Aleesha to have been simply “exhausted by the challenges and rewards of caring for her two very young infants around the clock”.
She also rejected Dr Gunn’s theory of a “recurrent” disorder, preferring the evidence of Dr Steele that the recent presentation was quite different to that of her teenage years.
With those issues decided, the Commissioner set about examining whether the current disorder arose – in a temporal sense – “in the course of” and then, “out of” her duties at the Council.
She quickly arrived at an affirmative answer to the first part of that question given that the disorder arose while she was engaged in the work she was employed to do in the relevant period and that her job “required her to deal with ratepayers and residents who were unhappy, upset, angry and difficult to deal with”.
An instance of the abuse that occurred while she was shopping in her work uniform in the company of her young daughter on the journey home from work, was – she ruled – “reasonably incidental to” her employment”, thereby further satisfying the “in the course of employment” nexus.
The Commissioner then noted the proximity between the dates of particular abuse of events and Aleesha’s GP visits, something that Dr Gunn – who concluded that the abuse had nothing to do her depressive condition – had been unaware of.
When this was bought to Dr Gunn’s attention while giving testimony, she conceded that work was a significant factor in Aleesha’s resulting psychiatric disorder.
With Drs Steele and Lotz having always been of that opinion, the Commissioner was also able to answer affirmatively to the second part of the employment nexus question, ie that the injury arose “out of” her employment.
Finally, she had to consider whether the employment was a “major significant contributing factor” and in doing so had to weigh all three “significant” factors.
She quickly discounted her sinus condition as having been “a major significant contributing factor” and likewise “genetic vulnerability and past history” as “the major significant contributing factor”.
The fact that she may not have suffered the injury but for an underlying genetic vulnerability and past history of adolescent depression, did not of themselves qualify those things as “major contributing factors,” the Commissioner observed noting that as in the case of an “eggshell skull” the employer must take their employees “as they find them”.
She then arrived at the conclusion – even allowing the possibility of the genetic predisposition favoured by Dr Gunn because of Aleesha’s “low” tolerance of hostility – that her work was the major significant contributing factor because after all, if she had not been exposed to the “onslaught of abuse in the course of her work” any genetic vulnerability would be unlikely to have been triggered so as to deliver such a severe illness.
It was the “persistent onslaught of abusive interactions she experienced in the course of her employment over a period of time that so triggered the emergence of that illness, ” Commissioner McLennan decided.
By way of addendum, the Commissioner excluded any ‘reasonable management action’ as having been a cause of any injury thus clearing the way for a final ruling that the claim be taken as one for acceptance.
As a result Aleesha is entitled to any unpaid time off work benefits plus a lump sum, equivalent to her impairment rating. Whether or not she also has a claim for negligence damages will depend on proving that the council ought to have known that her exposure to such abuse posed the risk of foreseeable injury to a person of ordinary fortitude.