Legal: Calling your doc on the day means WorkCover pay

A Queensland teacher has cleared the difficult “reasonable management action” hurdle and had her WorkCover claim confirmed as valid at the Queensland Industrial Relations Commission - and a timely consultation with her doctor was a key factor in the Commission’s decision.

The decision, which was delivered on 8 April, found that the teacher sustained a psychological injury due to unreasonable management action during a graduated return to work program through the Department for Education.

The return to work program was necessary after the teacher had a period of time off work for personal medical problems that were not work-related.

The teacher returned to work at her usual school but subsequently suffered a separate psychological injury. In all, there were four attempts at a graduated return to work agreement, all of which identified an injury management consultant with the department as the teacher’s rehabilitation and return to work co-ordinator.

The teacher was led to believe that the return to work program was flexible, with an indefinite duration. The reality was that the department had a fixed expectation of how long the return to work plan would be supported, but did not communicate that to the teacher until a phone call in February 2014.

The teacher claimed that, during this phone call, she was criticised for being slow to progress through the return to work plan and that she ought to “get up to speed” more quickly. A deadline was set unilaterally by the department, with the ultimatum put to the teacher that she ought to reduce her teaching fraction if she was unable to meet the department’s demands.

The department’s witnesses asserted that the teacher was “happy” with the content of the conversation, including the expectation that the teacher’s recovery should progress faster, and the possibility of a reduction in teaching fraction if it didn’t.

After the phone call, the teacher had a panic attack, something she had never experienced previously, and made arrangements to see a doctor who, after the consultation, issued a workers’ compensation medical certificate.

The medical evidence presented to the Commission by a number of doctors was that, although the teacher was being treated for depression before returning to work, she suffered a completely different psychological injury as a result of the graduated return to work plan, and the confused situation in the workplace was the major significant contributing factor to her latest injury.

In deciding whether to accept the teacher’s version of the telephone conversation in February 2014, the Commissioner found: “In accepting [the teacher’s] version, I note that her evidence is supported by her actions immediately following the end of the 24 February 2014 telephone call, where for the first time in the return to work program, she initiated contact with [the department] to express her concerns about what had occurred … followed up by her attendance upon her general practitioner and the issuing of the workers’ compensation medical certificate.

“[The department’s] version had [the teacher] happy with the outcome proposed, which included an agreed reduction in her employment status, which is at complete odds with how [the teacher] reacted immediately following the end of the telephone call.”

Calling the doctor immediately was pivotal in the Commissioner’s decision to accept the teacher’s evidence.

On the most difficult question of whether the teacher’s personal injury was excluded by the operation of s 32(5)(a) of the Workers Compensation and Rehabilitation Act 2003, namely whether the injury arose from “reasonable management action”, Industrial Commissioner Thompson found that: “I do not accept the dramatic changes to [the teacher’s] return to work plan and proposed reduction in her employment status, put [to the teacher] in a telephone call to [the teacher] on a non-work day without one 'iota' of any previous mention of such a change in the circumstances, was reasonable management action taken in a reasonable way, and therefore the operation of s 32(5)(a) is not enlivened.”

Early and faithful reporting of issues causing stress is crucial in allowing any claimant to beat the high bar of the “reasonable management action” hurdle.

Rachel Drew and Edmund Burke                                                                                   Tresscox Lawyers

Queensland Teachers' Journal, Vol 121 No 4, 3 June 2016, p29