Price v Blackwood

[2014] QIRC 80

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Price v Blackwood [2014] QIRC 080

PARTIES: 

Price, Jennifer

(Appellant)

v

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO: 

WC/2013/217

PROCEEDING: 

Appeal against decision of Simon Blackwood

(Workers' Compensation Regulator)

DELIVERED ON: 

8 May 2014

HEARING DATE: 

4 February 2014

28  February 2014 (Respondent's Written

Submissions)
19 March 2014 (Appellant's Written Submissions)

MEMBER: 

Industrial Commissioner Neate

ORDERS : 

1. The appeal is dismissed.

2.	The decision of the Regulator dated 7 June 2013 is confirmed.
3.	The Appellant pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS: 

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychological injury arising out of or in the course of employment - whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way - Appellant to establish decision wrongly made - Appellant to establish elements of s 32(5) of the

Workers' Compensation and Rehabilitation Act 2003

(Qld) not satisfied - Determined: reasonable management action taken in a reasonable way - s 32(5) of the Act satisfied - Appeal dismissed

CASES: 

Rossmuller v Q-COMP (C/2009/36) - decision

State of Queensland (Queensland Health) v QComp

and Beverley Coyne (2003) 172 QGIC 1447

Qantas Airways Limited v QComp (2006) 181 QGIG
301
Lackey v WorkCover Queensland (2000) 165 QGIG
22
Avis v WorkCover Queensland (2000) 165 QGIG
788

State Government Insurance Commission v Stephens

Brothers Pty Ltd (1984) 154 CLR 552

Dickinson v The Motor Vehicle Insurance Trust

(1987) 163 CLR 500

WorkCover Queensland v Curragh Queensland

Mining Pty Ltd (2003) 172 QGIG 6

Wayne Bailey v Q-COMP (WC/2011/149) - decision

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44
Davis v Blackwood [2014] ICQ 009
Q-COMP v Hohn (2008) 187 QGIG 139
Q-COMP v Glen Rowe (2009) 191 QGIG 67
Prizeman v Q-COMP (2005) 18 QGIG 481
Bowers v WorkCover Queensland (2002) 170 QGIG
1

APPEARANCES: 

Ms J.L. Price, Appellant, in person
Ms D. Callaghan, Counsel directly instructed by
Simon Blackwood (Workers' Compensation

Regulator), Respondent.

June 2013, Q-COMP confirmed the decision of WorkCover and determined that the Appellant does not have an entitlement to compensation (Exhibit 4). It is against that decision that the Appellant currently appeals.

[4]     The Appellant's list of stressors stated "basically the actual work of driving a truck led to depression. Long hours of work."

[5]     In addition to seeking a decision in her favour, the Appellant seeks pay and overtime for the weeks when, she contends, Boral refused to give her work, and reimbursement of her medical costs.

The legal requirements

[6] The appeal has to be decided by reference to s 32 of the Act, the relevant subsections of which provide:

"(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.

…

(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;

…

Examples of actions that may be reasonable management actions taken in a reasonable way -

- action taken to transfer, demote, discipline, redeploy, retrench or dismiss
the worker

- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."

The issues

[7]    The Regulator agrees that the Appellant is a worker, that she sustained a psychological injury which arose out of or in the course of her employment, and that her employment was a significant contributing factor to the injury.

[8]     At the commencement of the hearing before the Commission, there were two issues between the parties:

(a)	whether the Appellant's employment was "a significant contributing factor" to her injury; and
(b)	whether the Appellant's psychological disorder arose out of, or in the course of, "reasonable management action taken in a reasonable way" by Boral in connection with the Appellant's employment.

[9]     In relation to the first of those issues, the only medical evidence was given by Dr

Natalie Bennie, who was the Appellant’s doctor from September 2012. Dr Bennie

gave evidence in relation to her consultations with the Appellant on
22, 25 and 28 February 2013.

[10]   In light of that evidence, the Regulator agreed that the Appellant's injury arose out of the Appellant's employment and that her employment was a significant contributing factor to the injury.

[11] Consequently, the only remaining issue in terms of s 32 of the Act is whether the Appellant's injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with the Appellant's employment.

[12]   If Boral's actions comprised reasonable management action of that type, the appeal must fail.

Onus of proof and relevant evidence

[13]  The Appellant carries the burden of proof on the balance of probabilities.[1] Given what has been agreed by the Respondent, the Appellant must prove, on the balance of probabilities, that the claim should be accepted because her injury did not arise out of, or in the course of reasonable management action taken in a reasonable way by Boral in connection with her employment.

[1] See Rossmuller v Q-COMP (C/2009/36) - decision [2]; State of Queensland

[14]  The Appellant gave evidence in support of her case. Medical evidence was given by Dr Bennie.

[15]  The three witnesses called by the Regulator were involved in the management of the Appellant.

(a)	Mr Derek Brock is the Logistics Allocator for Boral. He worked for the Wagners Group ("Wagners") for almost four years before transferring to Boral. Mr Brock was the direct supervisor of the Appellant at both Wagners and Boral.
(b)	Mr Wade Clark is employed by Boral as the Operations Supervisor for Logistics for country Queensland and the Northern Territory. He was previously the Darling Downs Transport Manager for Wagner's Transport, and was based in Toowoomba from about September 2010. Mr Brock reported to Mr Clark who was, in effect, also the Appellant's supervisor from about September 2010.
(c)	Ms Louise Greaves is the HR business partner at Boral. She was involved in Wagner's takeover of Boral, particularly in relation to the transfer of the terms and conditions of people who were to move from Wagners to Boral in December 2011. Ms Greaves prepared the letters of offer, including the letter to the Appellant. She first met the Appellant in about February-March 2013 in relation to the Appellant's WorkCover claim.

[16]   In making findings in relation to the nature of the Appellant's work and other matters relevant to this appeal, I have considered the oral evidence given by the Appellant and other witnesses, as well as documents tendered, in these proceedings, and each party's written submissions. One aspect of the Appellant's written submission requires mention. The submission includes some statements of fact that were not the subject of evidence at the hearing and were not put to any witnesses in cross- examination. Those statements cannot be relied on after the hearing in an attempt to advance the Appellant's case and hence must be disregarded.

[17]  To ensure that all aspects of the Appellant's case are thoroughly considered, and the factual basis for the conclusions is apparent, these reasons for decision deal with the following subjects:

(a) the nature of the Appellant's work for Boral and for her previous employer

(b) the hours that the Appellant was required to work

(c) some issues about the Appellant's work performance

(d) the management action by Boral, particularly the management of truck drivers (including the Appellant), the allocation of lighter duties to the Appellant, and managing fatigue.

The nature of the Appellant's work

[18]  The factual context for resolving the issue covers a period that commenced before Boral acquired the transport component, concrete and quarries business, and certain assets of Wagners in December 2011, and continued until February/March 2013.

[19]  The evidence establishes, in summary, that:

(a)	The Appellant was employed by Wagners from 17 November 2008 as a concrete agitator driver on a full time basis from Monday to Saturday. The letter of appointment referred to a "spread of ordinary hours" between 6:00 am and midnight and with overtime and early commencement times "as required" (Exhibit 6). According to the Appellant, the work could commence at any time from 4:30 am and end at 6:00 pm, with 7.6 hours being the average daily work shift, although additional time could be spent on site.
(b)	On 4 May 2010, the Appellant injured her elbow. Consequently she was assigned other duties, initially in the stores in the workshop (handing out truck parts to mechanics for repairs) and then in the Logistics Department as a Data Entry Assistant, and as a weighbridge clerk for a few hours on some afternoons. The Appellant would also drive a truck. There was some difference in evidence about the extent of the Appellant's truck driving in the months following her injury (discussed below).
(c)	When Boral acquired certain business components and assets of Wagners (referred to as "the takeover"), Boral provided the Appellant with an offer of continuing employment dated 12 November 2011 (Exhibit 5). That offer stated that she would be employed as a Transport Driver, a full time position.
(d)	On 5 December 2011, the Appellant signed the document, accepting the offer of continuing employment and agreeing to be bound by the terms and conditions set out in the offer.
(e)	On 8 December 2011, approximately 270 employees (including the Appellant) transferred from Wagners to Boral.
(f)	On 13 January 2012, the Appellant participated in a competency assessment, the objective of which was to ensure that she had acquired the skills, knowledge and experience to satisfy Boral Logistics requirements of Truck and Dog drivers. The Appellant was assessed as competent and the assessor's post-assessment comments were "good safe driver." The Appellant noted on page 8 of the Competency Assessment Truck and Dog document (Exhibit 8) that she agreed with the results of this assessment, and signed that page.
(g)	The Appellant attended a driver induction course provided by Boral and signed a Driver Induction Pack sign-off form on 25 January 2012 (Exhibit 7). That form indicated that, among other things, the Appellant understood/showed competence in fatigue management.
(h)	A Commercial Driver's Health Assessment, part of which was completed and signed by the Appellant on 4 September 2012, included the following entry: "Current Position: DRIVER." Dr VT Madden performed a health assessment of the Appellant for "Proposed/Current Position: Driver," and expressed the opinion that the Appellant was "Fit for current driving issues" (Exhibit 10).
(i)	From the time of the takeover, the Appellant performed the work of a truck driver for Boral. She drove a six wheeler body truck. Work started at about 5.00 am and ended about 6.00 pm with a minimum of 7.45 hours per day for five days each week, and on Saturdays if needed. Drivers had to contact Boral after 6.00 pm each weekday to ascertain their starting time the following day. They would be advised by text message or two way radio if they were required to work on a Saturday.
(j)	In progress notes for the Appellant, dated 7 and 14 December 2012 (in relation to muscle strain), Dr Madden noted that the Appellant was a truck driver who drives a six wheeler tipper and has "been driving this truck for about a year."
(k)	The Appellant was allocated five days of work from Monday 18 February to Friday 22 February 2013 starting on site at 6.00 am each day.
(l)	On Friday 22 February 2013 at 5:35 am, the Appellant sent a text message to Mr Brock stating that she would like to see the company doctor (Dr Madden) as she believed that she was suffering from work stress. The Appellant returned to the yard and met with Mr Brock and Mr Clark. Mr Clark sent her home as being unfit to resume her normal duties as a driver, and advised the Appellant that she was not to return to work until she had been given a full medical clearance from her doctor to return to normal duties.
(m)	On 28 February 2013, Dr Bennie issued a Workers' Compensation medical certificate. Dr Bennie stated that the Appellant was not able to work from 25 February until 8 March 2013, and would be fit to return to normal duties from 11 March 2013 (Exhibit 16).
(n)	On or about 11 March 2013, the Appellant returned to work as a truck driver and, before starting her driving work for that day, wrote on the pre-trip documentation that she was not physically/mentally fit to drive a truck.
(o)	On 12 March 2013, as a consequence of that advice, the Appellant was informed by Mr Brock that she was not allowed to drive a truck.
(p)	The Appellant was on leave from 12 March 2013 until 10 May 2013. She did not return to truck driving for Boral and was not given other work to do. Boral did not terminate her employment
(q)	On 13 May 2013, the Appellant advised Boral that she was resigning, and on 24 May 2013 her resignation took effect.

[20]   Put in those terms, it would appear that, for most of the period from November 2008 until March 2013, the primary, and at times sole, role performed by the Appellant at Boral, and previously at Wagners, was as a truck driver.

[21]  However, the Appellant sought to focus on the non-driving work she was doing at the end of her time when employed by Wagners. To explain why she was doing work other than as a concrete agitator driver, the Appellant tendered (with the consent of the Respondent) a medical report dated 4 May 2010 (Exhibit 19) by Dr Madden, who was described as the company doctor for both Wagners and Boral.

[22]  The report stated that the Appellant was suffering from right lateral epicondyitis, which the Appellant stated had gradually occurred over the previous three months with repetitive work. The injury was consistent with the Appellant's stated cause of the injury. Dr Madden stated that the Appellant was fit for restricted return to work from 4 May to 3 June 2010, and as part of the rehabilitation and return to work plan "will need permanent deployment away from agi driving."

[23]  The range of work undertaken by the Appellant after 4 May 2010 is summarised at [19](b). There was a significant dispute between the parties as to the nature of the Appellant's employment in the period from May 2010 until December 2011 when the takeover occurred.

[24]  In essence, the Appellant gave evidence that she was permanently redeployed to an administrative role and that she only used a body truck to deliver a load once or twice a month, if a driver was sick or busy and they had a spare truck. She considered that she had a full-time administrative role from 8.00 am until 5.00 pm Monday to Friday.

[25]  By contrast, Mr Brock's evidence was that the Appellant's duties were as a full-time body truck driver doing local quarry deliveries around town, with occasional work at the public weighbridge and in the transport office when she was on light duties as a result of WorkCover claims. Depending on the nature of her injuries, she would do general tidying up around the yard (e.g. hosing, sweeping, tidying gardens) or washing light vehicles or pruning. If she was unable to do that work because of her injuries, she would be given office work such as filing or answering phones. Mr Brock said there was never a time when she performed full-time administrative duties.

[26]  Mr Clark said that, at that time, the Appellant was on light duties due to a WorkCover injury and was performing administrative duties. Upon receiving a full clearance, she went to a split role doing truck driving and administrative roles. The administrative work fluctuated (subject to the availability of full-time administrative staff) and the Appellant was never doing a full-time administrative role. In his view, her role was first and foremost as a truck driver, then as an administrative assistant as required.

[27]  Ms Greaves said that, at the time of the takeover, Boral was advised by Wagner's that the Appellant was a truck driver, and her employee file at Wagners stated that she was a truck driver.

[28]  The Regulator submits that the balance of the evidence supports a finding that the Appellant was employed with Wagners as a truck driver and remained in that substantive role until the transfer, albeit performing some administrative duties on a variable basis since mid-2010.

[29]  That may be so. But because the Appellant's injury occurred during her employment by Boral, it is not necessary to make a finding to that effect. However, the evidence explains the circumstances in which the Appellant came to be employed by Boral, and gives the background to aspects of the subsequent dispute between the Appellant and Boral.

[30]  The Appellant gave evidence that during her time as an employee at Wagners, she had asked for a change to her contract to reflect the administrative role that she considered she was performing. Such change was not made and she did not sign another contract. However, the Appellant submitted that, given that she was not doing the work of an agi driver at the time of the takeover by Boral, she would have expected Boral to question why she was in the Logistics Department. In her notice of appeal, the Appellant stated that she assumed that, although the contract had her as a truck driver she would be doing similar work to what she was doing at the time of the takeover.

[31]  Accounts differ as to what the Appellant and Boral agreed at the time of the takeover. The Appellant contends that Boral was not "up front" with her about the nature of her employment and that when she went in to sign the contract with Boral "I just assumed, I'm sorry, that they left me as a truck driver to keep me on wages,

2

rather than put me on a salary because I'd be doing various positions."	She
continued:

"I thought it would have been just common courtesy to actually come up to me

face to face and say, 'Jennifer, your position is no longer going to be there. We

3

have to give you a new role', not just sign."

[32]   The evidence is not clear but it appears that:

(a)	before the takeover, there was a meeting of Wagners' staff who were advised that Wagners was selling certain assets to Boral;
(b)	then there was a meeting with the logistics managers and, according to the Appellant, she asked if she would be doing the same work and she was told that she would be;
(c)	on the day of the takeover she was in a room with others (including Mr Clark) and she was given a contract. Her potential hours of work were explained and she read and signed the contract.

[33]  The Appellant suggested that prior to the takeover of Wagners by Boral, she "had probably said" to Mr Brock that she did not want to be a truck driver. However, the Appellant agreed that before signing the letter of offer, she did not speak to either Mr Brock or Mr Clark indicating any concern about what her role with Boral would be. Nor was there any discussion during the time when the Appellant was assessed as a Truck and Dog driver about whether the Appellant was not actually a truck driver, and did not want to be a full-time truck driver.

[34]   There is no dispute that the Appellant was employed full-time by Boral as a transport driver and that, from the takeover onwards, she was driving a six wheeler body truck. There is no evidence that she was coerced or misled into signing the contract of employment. The Appellant attended a driver induction course provided by Boral and signed the relevant documentation. She was assessed as fit having undergone a Commercial Driver's Health Assessment.

[35]  Mr Clark recalled a meeting with the Appellant and Mr Baumgart, probably in January 2012, when the Appellant "voiced concerns" that it was not made clear to her that she was employed with Boral as a "100 per cent solely truck driver." She thought it was a similar role to her role at Wagner's, where she was a truck driver and administrative assistant. Mr Clark stated that he and Mr Baumgart made it clear that her letter of offer stated truck driver. They held a follow-up discussion at the Appellant's request, and reconfirmed that her letter of offer was as a truck driver and "that's what she's employed 100 per cent to do." The Appellant confirmed that that was the only discussion that she had with Mr Clark in relation to the fact that she did not want to be a full-time truck driver.

[36]  Mr Brock recalled a casual conversation around the time of the take-over, in which the Appellant made it clear that she would prefer to do another role than truck driving, but it was explained to all the employees at meetings about the transition, that everyone would have the same role at Boral as they had at Wagners. He also recalled that, in casual conversations with him after the takeover of Wagners' operations, the Appellant had mentioned that she did not want to drive trucks anymore, and that she would prefer to do something else though not necessarily administrative duties.

[37]  Evidence was given on behalf of Boral that:

(a)	the logistics administration of Boral was based at Wacol near Brisbane, and consequently the previous logistics jobs with Wagners in Toowoomba no longer exist, so those few administrative staff were made redundant, were relocated, or left; and
(b)	the public weighbridge at which the Appellant had done some work when employed by Wagners, was not used for the public after it was sold to Boral.

Consequently, those types of work that the Appellant did for Wagners after her injury in May 2010 had ceased or were done elsewhere, and there were no prospects of local administrative work for Boral.

[38]  Even if the Commission were to accept that the Appellant had proceeded at all relevant times (such as when accepting the offer of continuing employment) on the understanding that, despite the wording of the documents that she signed, she was not employed as a driver but in some administrative or other role, that does not resolve the issue of what she was employed by Boral to do.

[39]  It was clear from the way in which she presented her case in the hearing before the Commission, that the Appellant is an intelligent, articulate woman who is well able to express her views and attempt to protect her interests. I accept that she needed to work and could not afford to resign from paid employment. However, that does not explain away the fact that she signed a series of documents that described her employment as a truck driver, submitted herself to medical and other assessments, and attended induction training, for truck drivers, and drove trucks as her daily work.

[40]  The evidence makes it clear that the Appellant was employed by Boral as a truck driver and that seems to have been acknowledged and accepted by the Appellant. Indeed, her final written submission stated:

"It was not until the Boral takeover and I was driving 'full time' that I started
having injuries that required light duties."

[41]  The Appellant's history of employment with Wagners and Boral, shows that for some periods she was engaged in activities other than truck driving, and that those alternative forms of work were assigned to her as a consequence of physical injuries sustained by her in the course of her employment as a truck driver. In that respect, I note that during the almost 15 months of her employment at Boral between 9 December 2011, and until she sustained her injury on 22 February 2013, the Appellant had more than 57 days away from work. Apart from the 27 days of annual leave, she had approximately 17.6 days of leave without pay, 10.3 days of sick leave, 1 day of carer's leave and 2 days of bereavement leave (Exhibit 11). During that period, the Appellant had a number of physical injuries, some of them described as WorkCover injuries, as a result of which she was assigned lighter duties.

[42]  It was clear, and I find, that the Appellant was contractually engaged by Boral as a truck driver and that she was assessed as fit for that work by Dr Madden in September 2012. Apart from times when she was injured and was assigned lighter duties, the Appellant performed the duties of a truck driver, albeit reluctantly on some occasions. It was in the course of her employment as a truck driver that the Appellant suffered the injury for which she seeks compensation.

Hours of work

[43]  The Appellant's case really turns on the hours that she was required to work rather than on the nature of the work and, in particular, whether those hours were unreasonable insofar as they affected the discharge of her family obligations and caused her to suffer fatigue due to "sleep debt."

[44]  The offer of continuing employment by Boral (Exhibit 5), which the Appellant accepted and signed on 5 December 2012, contained the following provisions about her hours of work as a Transport Driver:

"6. Hours of Work required to work reasonable additional hours Monday to Sunday inclusive to meet operational needs .....

12. Shift Work operational needs."

[45]  The document also listed among the General Obligations that, during her employment, the Appellant must perform her work and anything connected with it:

(a)	"with due care and skill and in a proper, thorough and co-operative manner;
(b)	safely, and in accordance with Boral's safety requirements;
(c)	in accordance with any day to day directions given by Boral;
(d)	in accordance with any written direction, procedure or other specifications
(e)	provided by Boral to you (relating to the performance of your work or anything connected with it);
(f)	....

(g) ….

(h) without jeopardising or damaging Boral's business; and

(i)       in compliance with all relevant laws."

[46]   The Appellant stated that, on her return to work after she signed the contract and she found out that she was going to be a full-time truck driver she met with Mr Clark and said that she could not work outside the hours of 8.00 am and 5.00 pm. Apparently she told Mr Clark that she was in a relationship and had two step- children. In order to take care of them, she needed to work within those hours. According to the Appellant, Mr Clark agreed at that time. About a couple of months later, when Mr Clark asked her to be available all the hours that Boral needed her, she refused.

[47]  The Appellant said that after a subsequent conversation with Mr Brock, she felt pressured to agree to work more flexible hours and she did. That was despite the fact that her partner had started to work out west (at or near Miles) and was away during the week, and the Appellant was the sole carer of the children.

[48]  There is documentary evidence from January 2012 in relation to the hours of work issue. Mr Clark wrote the following manager's comments on the Competency Assessment Truck and Dog document (Exhibit 8):

"Jen is a good operator, who has a concrete background, and therefore understands vehicle control. Jen does need to be more flexible in her work hours as deliveries start from 6.30 am and her current start time is 8:00 am."

[49]  Mr Brock recalled the Appellant approaching him in 2012 and early 2013 about working fewer hours, by starting later and finishing earlier to suit her partner's children. He said that he would do what was in his power to work around that, but that her role involved work outside those hours and he could not guarantee to give her work for shorter hours consistently.

[50]  Mr Clark recalled that in during her time at Boral, the Appellant indicated that she wanted to do minimum hours. At no time during 2012 and early 2013 was it put to him that there was some physical or psychological reason for her requesting to work reduced hours. However, the Appellant had commitments with children, taking them to school and picking them up after school. Boral would allow a late start and early finish where they could.

[51]  According to the Appellant, she did not request part time work during her time at Boral, as she did not think that was an option. She was happy to work from 8.00 am until 5.00 pm, but did not want early starts and late finishes.

[52]  The contrast between the Appellant's aspirations and the employer's expectations is illustrated in an exchange between the Appellant and Mr Clark at the hearing. He had given evidence about the SmartTrack system in the trucks and the fact that at no stage during the week before she went on stress leave in late February 2013 did the Appellant indicate any reason that she was unable to work. The Appellant's questions and Mr Clark's replies were as follows:

"Yes but, see, I approached you before this occurred. I approached Darek (sic) and I asked to work every second day, as I knew working consecutive days would affect my health, safety and welfare and also my ability to care for my stepchildren and I was ignored. I raised the issue before the job occurred? --- And, as we spoke to you at the time, Jennifer, that's the job that you are employed to do. That's the job that you've signed on to do. They're the hours that are stipulated in your contract and some 12 months or so after the fact, when we had that initial conversation in January 2012, you still stayed on, driving a truck, when you've known that they're the hours of a truck driver.

Because I wasn't - yeah, if I wanted to resign, yeah, fine, but I'm sorry. I have a

mortgage to pay - need a job? --- And we were up front with you. We were

4

clear and said, "This is the role"."

[53]  On about 1 March 2013 (soon after the application for compensation was made), the Appellant met with Mr Baumgart (the operations manager for logistics) and Ms Greaves. The meeting was convened to discuss the Appellant's concerns about Mr Clark, and she indicated that she did not want to start work early but wanted to start at about 8.00 am, apparently because of child-minding arrangements with her step children. According to Ms Greaves, there was no discussion about any physical or psychological reason why the Appellant could not work her contracted hours.

[54]  Ms Greaves stated that management's response was that Boral tries to accommodate flexible hours where it can. However, it is difficult to accommodate flexible working arrangements involving late starts for truck drivers because a lot of the loads are early in the morning.

[55]  There was also evidence that the average number of hours overtime that she worked for the weeks she was at work between 8 December 2011 and March 2013 (5.5 hours), was less than the average number of hours overtime worked by the other members of the team (8.04 hours). The Appellant points out that this is only a half hour per day difference. It does, however, illustrate that the Appellant's average work hours were fewer than those of other drivers in the team.

Other issues

[56]   Some concerns were recorded about the Appellant's work performance at Boral.

[57]  Mr Clark felt that from January 2012, when he and Mr Baumgart gave the Appellant the final notification that she was employed as a truck driver, "things got tougher." According to Mr Clark, the Appellant was harder to manage and her work performance was not at the same standard. The Appellant requested later starts and earlier finishes, and did not want to do certain jobs

[58]  Apparently there were some complaints or concerns about the Appellant sometimes arriving late for work or leaving work without giving proper notification, and these actions were characterised as examples of the Appellant becoming unreliable. There were also concerns from Mr Brock that the Appellant was difficult to communicate with while at work in the sense that she would make it difficult for people to contact her, or would not respond to calls by mobile phone or VHF and would disregard what quarry staff were telling her.

[59]  The Appellant explained that, in at least some instances, she was unable to respond to messages sent to her mobile phone while she was driving and had to wait until she reached a place where she could stop and deal with it. It also appears from the Appellant's letter of complaint against Mr Clark dated 12 February 2013, that her reservations about reporting her injuries were based on his tone when speaking with her, and the Appellant's sense that Mr Clark made her feel like a hypochondriac and belittled her (Exhibit 9).

[60]  It was apparent that the Appellant had a strained relationship with at least one of her managers. The Appellant sent letters of complaint dated 12 and 17 February 2013 to Mr Baumgart (Exhibit 9). The complaints were about what she described as Mr Clark's tone and attitude when dealing with her when she reported work-related injuries. According to the Appellant, by the time of her injury in late February 2013 she did not trust Mr Clark, had no respect for him, and thought that he was trying to get rid of her. She said that she felt betrayed by him, and that he was making her work the long hours. The way he was treating her was causing her stress. The Appellant felt that Mr Clark felt that she was being difficult. As noted earlier, the Appellant met with Mr Greaves and Mr Baumgart around 1 March 2013 to disclose a range of concerns, including how Mr Clark conducted himself.

[61]  The Appellant agreed that for most of the time that she was working at Boral, and at least during the last 18 months, she was not happy. In particular, she did not want to be a truck driver, though she had "no problem working." When cross-examining Mr Clark, the Appellant indicated that she had been "stressed out and not enjoying my work," and that might have been the reason why he found her to be increasingly difficult to manage.

Management action by Boral

[62]  Given that at all material times the Appellant was employed by Boral as a driver, it is appropriate to give attention first and primarily to the way in which Boral allocated work to truck drivers and to the Appellant in particular, and to the way in which the Boral management dealt with the events of 21 and 22 February 2013, and 11 March 2013. It is also relevant to note that, at times when she was recovering from physical injuries, the Appellant was allocated other duties that she could perform consistently with those injuries.

[63]  Management of truck drivers (including the Appellant) generally: The thrust of the evidence given by Ms Clark, Mr Brock and Ms Greaves about the allocation of work to truck drivers in the five person team was that:

(a) Boral was running a business that required that trucks be made available to start early or finish late.

(i)       Most of the body truck work would be between the quarry opening hours of 6.00 am and 6.00 pm.

(ii)      The work also included work for Joe Wagner at an hourly rate every few months, for weeks or a month at a time. Joe Wagner Earthmoving was doing civil and landscape work including road building and flood repairs. The work had no set hours and Boral was to provide a truck (or trucks) to the site as required by a nominated time to move material to and from the site as directed. Directions were given by the foreman at the site. Work was done, and charged, on an hourly basis for truck and driver. Although much of the work was done between 7.00 am and 4.00 pm, Boral did several jobs that were between 5.30 am and 6.00 pm.

(b)	Mr Brock rostered the drivers in the team as evenly as possible, to ensure that the allocation of longer than usual days were shared.
(c)	It would have been unfair to roster other drivers for longer hours, and not have the Appellant do her share of such rosters.
(d)	The company would not let each driver dictate what hours they would or would not work.
(e)	To the extent that it was possible, Boral attempted to accommodate the Appellant's wishes; but sometimes there was no option but to allocate her to work the longer hours.
(f)	Although some days would be long (commencing for example at 5.30 am), systems (such as SmartTrack) were in place to ensure that no driver would, or could, drive more than 12 hours in one 24 hour period, and that each driver took the required breaks of appropriate length and frequency. Indeed a driver could return to the yard after 16 hours (and be paid for being at work for 16 hours), but that period would include more than four hours of rest breaks.

[64]  The Appellant accepted that it was fair to rotate early and late starts and finishes, so that every driver would have similar hours of work for a week.

[65]  However, the Appellant asserted, in essence, that:

(a)	the other drivers would not necessarily have complained if one driver had been given late starts or early finishes all the time, because "they wanted the work, whereas I didn't;" and
(b)	when Boral took over, the workload declined significantly and she did not see why she could not be accommodated when they were not busy.

[66]   There was no evidence in relation to the first of those assertions.

[67]  There was evidence from Mr Brock about the workload in 2012 to early 2013. He stated that in the early months of the year it was "reasonably quiet," but that as the year progresses it gets "fairly busy," or "extremely busy." It was quite common to be operating from four to six body trucks full-time. Most of the body truck work would range between quarry opening hours of 6.00 am until 6.00 pm, and would involve local deliveries. Although the volume of work fluctuated, in early 2013 the body trucks (other than the truck allocated to the Appellant), were making money.

[68]  Allocation of lighter duties to the Appellant: Although the Appellant was employed as a driver, from time to time she was allocated a range of other duties as a consequence of or while she was recovering from various injuries, some of which were the subject of WorkCover claims.

[69]  At Boral, the lighter duties included general tidying up around the yard (hosing, sweeping, tidying gardens), washing light vehicles and pruning in the garden. If the Appellant's injuries were such that she could not do work of that type she would work in the office to do filing and answer phones.

[70]   The Regulator asserted that, apart from the times when the Appellant was recovering from injuries, she had the psychological and physical capacity to perform truck driving duties, including for the long hours. The Appellant had not suggested otherwise during most of her period of employment.

[71]  The explanation for at least some of these other duties allocations can be found in medical reports from Dr Madden, who assessed the Appellant at key dates during the Appellant's employment by Wagners and Boral.

[72]   Although originally listed to give evidence in these proceedings, Dr Madden was not called. That decision was taken by the parties well before the Appellant sought to tender Dr Madden's reports dated 4 May 2010 and 16 January 2013 (together with Dr Madden's progress notes for the Appellant dated 7 and 14 December 2012 and 9 January 2013 in relation to muscular strain and discomfort). Those documents were put into evidence with the agreement of the Respondent.

[73]  As noted earlier:

(a)	on 4 May 2010, Dr Madden diagnosed a physical injury that the Appellant suffered and stated that she was fit for restricted work from 4 May to 3 June 2010 and, as part of the rehabilitation and return to work plan "will need permanent deployment away from agi driving" (Exhibit 19);
(b)	in September 2012, Dr Madden performed a health assessment of the Appellant for "Proposed/Current Position: Driver" and expressed the opinion that the Appellant was "Fit for current driving issues" (Exhibit 10); and
(c)	on 7 and 14 December 2012, Dr Madden noted that the Appellant was a truck driver who drives a six wheeler tipper and had been driving this truck for about a year (Exhibit 20).

[74]  Dr Madden prepared the report dated 16 January 2013 (Exhibit 20) in response to a WorkCover request to assist in making decisions about the coordination of treatment and return to work management in relation to the Appellant. In particular, Dr Madden was asked to describe 12 clinical signs of injury that he used to determine her diagnosis of "muscle strain thoracic spine." He stated that the Appellant had a "long history of soft tissue injuries and muscle-type strains performing this type of work." Dr Madden continued: "Constitutionally I believe she is prone to these type of injuries. I suspect she will have ongoing problems such as this in this work."

[75]  The other evidence does not disclose the extent to which (if at all) Boral took this report of the Appellant's physical condition into account when allocating work to her after 16 January 2013. However, the Appellant's case is not that she suffered work related soft tissue injuries and muscle strain, or other such physical injuries. As already noted, alternative forms of work had been allocated to the Appellant when she suffered physical injuries.

[76]   Managing fatigue: It is apparent from the questions that the Appellant asked in cross-examination of Mr Clark, as well as her evidence and her written submissions, that the Appellant's concerns about the lengths of shifts were related to consequent fatigue and sleep deprivation, as well as the family care issues.

[77]   Mr Clark confirmed that his role is to oversee and ensure fatigue management. In the performance of that role he consults with drivers about fatigue issues and plans workloads by building in time to allow drivers to meet normal living requirements.

[78]  The Appellant described the week when she was "totally overwhelmed" (18 to 22 February 2013) as involving being on site from 6.00 am until 6.00 pm. By her account, she had to be up at 4.15 am to be at the yard by 5.15 for pre-trip activity, followed by a half-hour trip to the job site. After 6.00 pm, she had to refuel the truck and return it to the yard by 6.45 or 7.00 pm. Later, she would go home to do her normal home duties. By her calculations, she had to do 14 hour days for five days, a 70 hours week. Having done her home duties, she would average 6.45 hours of sleep, which she suggested led to a "sleep debt." By contrast, in her current job as a bus driver, the Appellant is able to have eight hours sleep at night.

[79]  According to Mr Clark, the SmartTrack system in the Appellant's truck did not report any breaches of the maximum permitted driving hours or any failure to take the required breaks during that week. In addition, the Appellant was employed as a truck driver. The contract stated that she would do overtime as required. The hours the Appellant worked that week, were what was required of truck drivers, and Boral had no notice of any breach of the fatigue requirements.

[80]  Against that background it is appropriate to consider the events at the end of the week of 18 to 22 February 2013 which preceded the Appellant's claim for compensation.

[81]  The Appellant was allocated a 5.15 am start on 21 February 2013, to be onsite by 6.00 am. The customer rang Mr Brock to report that the truck had not arrived. The Appellant sent a text message to Mr Brock at 6.59 am and stated that she had slept in and would be at work soon. The Appellant arrived at the yard at 7.30 am. Mr Brock was concerned that Boral lost about three hours of hourly hire revenue because he did not have another truck to replace the Appellant on that job (Exhibit 12). The Appellant contended that any complaint about her was unwarranted. In her opinion, there was not much work going on for the body truck at the time, and Mr Brock could quite easily have sent a different truck to that job site. I am not satisfied that would have been practicable, particularly at no, or very short, notice.

[82]  On 22 February 2013, the Appellant sent a text message to Mr Brock at 5.35 am advising that she believed that she was suffering from work stress and would like to see Dr Madden. Mr Brock contacted Mr Clark, and advised the Appellant to keep working and he would contact her later. The Appellant made an appointment to see Dr Madden.

[83]  At 8.11 am, Mr Brock received a phone call from the Appellant asking who had decided to send her on the job for Joe Wagner Earthmoving. In an email account of the conversation sent to Mr Clark at 9.39 am, Mr Brock wrote:

"She stated that we had a conversation a couple of days ago that she did not want to be on this job every day and that she would prefer to only work basic hours (7.6). As I explained to her at the time and then again this morning, I make the call on which trucks go to which job taking into account specific orders and driver suitability to these and I have NOT left her on that job all week as she accused me of. I have swapped trucks and drivers every few days to give everyone a chance at early starts and overtime. As well as late starts and short days. She was not happy with my answer I can only assume as she then hung up on me." (Exhibit 13)

[84]  Mr Brock asked the Appellant to come into the office to meet with Mr Clark, and that meeting occurred at about 10:30am. The Appellant explained that she was feeling stressed in this particular job. Mr Clark stated that the Appellant would be sent home, as she was unfit to resume her normal duties as a driver. He explained that Dr Madden was the company doctor, and that the company, not individual employees, made any appointment. Accordingly, the appointment made by the Appellant was cancelled and she would need to see her doctor. If the Appellant's doctor provided a WorkCover certificate, then she could submit a claim through WorkCover. If WorkCover approved the claim, then the costs of consultation would be paid by WorkCover. In any case, the Appellant had four days of sick leave entitlements and so could go on sick leave, or could take annual leave or leave without pay. The Appellant became upset. Having seen her emotional state, Mr Clark advised the Appellant that she was not to return to work until she had been given a medical clearance from her doctor. He offered for the Appellant to be driven to her home. She declined the offer, and drove herself home. The Appellant sent a text message to Mr Brock at 11.16 am advising that she had arrived home safely and that she had a doctor's appointment for 3.20 pm that day. After seeing Dr Bennie, the Appellant sent an email to Mr Brock with a doctor's certificate stating that the Appellant was suffering from depression and would be off work until Thursday 28 February 2013 (Exhibits 14, 18).

[85]  On 28 February 2013, the Appellant again consulted Dr Bennie whose notes of that consultation stated:

"requesting work cover for stress leave
feels stress at work, has significantly contributed to low mood recently
has been forced into driving a truck, which she doesn't want to do, and was not
consulted about the role change" (Exhibit 15).

[86]  I quote that passage to illustrate the basis on which Dr Bennie acted, not to suggest that the final sentence is a completely accurate statement of the Appellant's circumstances.

[87]  Dr Bennie issued a Workers' Compensation medical certificate that day. The certificate stated that the Appellant was suffering from depression which, according to the Appellant, was caused by "Increased stress at work from being forced to work in a position that she didn't want to be in." Dr Bennie stated that the Appellant was not able to work from 25 February 2013 until 8 March 2013 and would be fit to return to normal duties from 11 March 2013 (Exhibit 16).

[88]  There is no dispute that the Appellant suffered stress from the hours she was required to work. Mr Brock agreed that the Appellant had done the shift commencing at 6.00 am for five days as at 22 February 2013. He also said that he would do that with other drivers and then swap them out to local deliveries the following week. He would not accommodate the Appellant by putting her on that shift every second day as he would have to do that for every driver. According to Mr Brock, it was impossible in his fleet for his drivers to dictate what hours they would and would not do.

[89]  When the Appellant returned to work on 11 March 2013, she completed the pre-trip documentation, and indicated that she was not physically or mentally fit to drive a truck. The Appellant drove a truck that day, and at the start of her next day when she was called back in and Mr Brock told her that, because of her statement, she was not allowed to drive a vehicle. According to the Appellant there was a "stalemate," as she was not given any work but Boral did not terminate her employment. The Appellant's Leave History (Exhibit 11) shows that she was on Leave Without Pay and Annual Leave from 12 March until 10 May 2013. The Appellant wrote a letter/email of resignation dated 13 May 2013, and her resignation took effect on 24 May 2013.

[90]   In summary the evidence considered above establishes that Boral:

(a)	allocated driving work to the Appellant consistently with the manner that work was allocated to other drivers;
(b)	work was rostered as evenly as possible to ensure that the longer than usual days were shared between drivers;
(c)	would not let each driver dictate what hours they would or would not work;
(d)	to the extent that it was possible, attempted to accommodate the Appellant's wishes, but sometimes there was no option but to allocate her to work longer hours;
(e)	had systems (such as SmartTrack) in place to ensure that no driver would, or could, drive longer than the permitted hours and that each driver took required breaks of appropriate length and frequency;
(f)	relied on drivers to complete pre-trip documentation each day to indicate (among other things) whether they were physically or mentally fit to drive a truck, and took a driver off driving duties when they indicated that they were not fit to drive;
(g)	allocated other work to the Appellant when she was recovering from injuries.

The operation of s 32(5) of the Act

[91] The extent and limits of the operation of s 32(5) of the Act have been described in the following cases.

[92]   In Lackey v Workcover Queensland,[5] Hall P accepted that:

"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the

phrase used were 'caused by' …"

The former President repeated that statement in Avis v WorkCover Queensland

6

[5] Lackey v WorkCover Queensland (2000)165 QGIG 22.

("Avis").

[93]   In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining

7

Pty Ltd, Hall P stated that the statutory provision:

"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way. It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way." (emphasis added)

[94]  He continued by reiterating that it was settled by the decision in Avis[8] that the test

posited by the words "arising out of" is wider than that provided by the words

9

[8] Avis v WorkCover Queensland (2000) 165 QGIG 788.

"caused by."

[95]    However, there is also authority rejecting the proposition that once an injury was in

any way "touched" by reasonable management action reasonably taken it is not

10

compensable. In a recent decision, Martin J expressed his agreement with the reasoning of in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as

an “injury.”[11]

[11] Davis v Blackwood [2014] ICQ 009, [51].

[96]   The Commission's role is to embark upon the enquiry whether the

psychological/psychiatric injury arose out of, or in the course of, reasonable

12

management action taken in a reasonable way. As Martin J stated recently:

“The task of the Commission when applying s 32(5) does not involve setting

out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant

to whether what was done was, in fact, reasonable.”[13]

[13] Davis v Blackwood [2014] ICQ 009, [47].

[97]  In Prizeman v Q-COMP,[14] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."

[14] Prizeman v Q-COMP (2005) 18 QGIG 481.

[98]  In Bowers v WorkCover Queensland,[15] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.

[15] Bowers v WorkCover Queensland (2002) 170 QGIG 1.

Consideration

[99] As noted earlier, s 32(5) of the Act is followed by examples of actions that may be reasonable management actions taken in a reasonable way. None of those examples applies in this case. However, it is not contentious that Boral's decision to require the Appellant to work as a truck driver (the Appellant having signed a contract to be a truck driver for Boral) is management action. Similarly, allocation of duties and rostered hours to satisfy client demand is management action.

[100]The Regulator submits that, on a common sense view, there can be nothing unreasonable about rostering an employee in a role and for working hours they have contracted to perform absent any knowledge of a physical or psychological reason why they are unable to continue to perform those contractual duties. The Regulator also submits that, at its highest, the Appellant's role at Boral could be interpreted as being associated with an action not to provide her with the benefit of more administrative tasks and, on the Appellant's evidence, hours of work more often suited to her home life.

[101]In support of that submission, the Regulator points to two decision of the Commission and a judgment of the High Court.

[102]In WorkCover Queensland v Curragh Mining Pty Ltd,[16] Hall P found that a

[16] WorkCover Queensland v Curragh Mining Pty Ltd (2002) QGIG 6.

psychological disorder which arose from a reasonable decision to promote a diligent

employee and increase his workload was subject to the exclusion in s 32(5). In

17

reaching that conclusion, Hall P relied on the decision in Avis that a psychological disorder following in the wake of reasonable management action, including turbulence in the workplace flowing from reasonably taken changes, is withdrawn from the definition of injury by the phrase "arising out of."

[103]Similar issues were canvassed in Wayne Bailey and Q-COMP,[18] where the appellant decompensated as a result of work overload as a result of a restructure and increasing demand for product. The management action was scrutinised and found to be reasonable and taken in a reasonable way. That case is, however, distinguishable on its facts from the present appeal.

[18] Wayne Bailey v Q-COMP (WC/2011/149) - decision

[104]In Koehler v Cerebos (Aust) Ltd,[19] the High Court considered a claim for negligence by an employee against an employer. It was not a statutory claim for compensation like the present case, but a claim for psychiatric injury arising out of allegedly unfavourable working conditions which the employee had contracted to undertake. The High Court considered the foreseeability of the risk of injury and the reasonableness of response to that risk. Although the case was decided in relation to legal issues different from the statutory scheme that governs the present appeal, some statements from the judgments provide guidance to deciding this appeal.

[19] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44.

[105]As part of their reasoning, the Justices considered, among other things, the implications of an employee contracting with an employer to do the work which later gives rise to psychiatric injury. Their Honours took account of the obligations which parties owe one another under the contract of employment. In that case, the Court upheld the decision of the Full Court of Western Australia that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the appellant because:

(a) the appellant agreed to perform the duties which were a cause of his injury; and

(b) the employer had no reason to suspect that the appellant was at risk of

20

psychiatric injury.

[106]It was sufficient for the purposes of that case to attribute only limited significance to the appellant's agreement to perform the duties which brought about his injuries. However, McHugh, Gummow, Hayne and Heydon JJ stated:

"Within the bounds set by the applicable statutory regulation, parties are free to

contract as they choose about the work one will do for the other. In particular,

within those bounds, parties are free to stipulate that an employee will do more

21

work than may be the industry standard amount."

[107] That passage followed this statement from their Honours:

"An employer may not be liable for psychiatric injury to an employee brought

about by the employee's performance of the duties originally stipulated in the

contract of employment. In such a case, notions of 'overwork,' 'excessive work,'

22

or the like, have meaning only if they appeal to some external standard."

[108]Callinan J, in a separate judgment to the same result, wrote that in the context of a workplace, when the claim is of an excessive workload as the cause of injury, "the

rights and liabilities of the parties (subject only to relevant industrial legislation …)

23

will usually be governed by the contract of employment."

[109]By reference to the reasonable foreseeability issue, McHugh, Gummow, Hayne and

Heydon JJ wrote that the employer engaging an employee "to perform stated duties

is entitled to assume, in the absence of evident signs, warning of the possibility of

24

psychiatric injury, that the employee considers that he or she is able to do the job."

In that case, the appellant had made many complaints to her superiors, but none of

them suggested (either expressly or impliedly) that her attempts to perform the

25

duties required of her were putting, or would put, her health at risk.

[110]The same conclusion could be reached on the evidence in this case in relation to the Appellant's psychological injury.

[111]The Appellant's written submissions on these issues are, in summary, as follows:

(a)	long hours of work can result in less than adequate sleep and a tendency towards ongoing fatigue
(b)	stress can lead to absenteeism, negative commitment to work and poor attitude
(c)	an employer is obliged to:

	assess fatigue risks associated with work undertaken
	plan drivers' workloads by building in time to recover from fatigue, including building in time to allow drivers to meet normal living requirements and commitments
	take "reasonable steps" to prevent driver fatigue and ensure a driver does not drive a heavy vehicle while impaired by fatigue.

[112]There is no dispute that an employer has to provide a safe place of work and that fatigue management is appropriate. However, there is no submission in this case that Boral breached either the statutory provisions governing the maximum hours which drivers were to drive or the terms of the contract between Boral and the Appellant. The SmartTrack system regulated each driver's hours of driving and the required breaks. There was evidence that all the requirements were met and that Boral relied on drivers to inform Boral if they were unfit for work. When this was done, a driver was taken off the roster. That is exactly what was done in relation to the Appellant the day after she completed pre-trip documentation on 11 March 2013 indicating that she was not physically or mentally fit to drive a truck. There is other evidence that, before that date or the week of 18 to 22 February 2013, the Appellant had not indicated that there was any physical or psychological reason why she could not perform her driving duties as allocated.

[113]It is apparent from evidence already summarised that Boral employees have a role in relation to fatigue management. The Driver Induction Pack sign-off form, signed by the Appellant on 25 January 2012, indicated that the Appellant understood/showed competence in fatigue management. Her General Obligations listed in the offer of continuing employment by Boral which the Appellant signed included an obligation on the Appellant to perform her work and anything connected with it safely, and in

accordance with Boral’s safety requirements as well as in compliance with all

relevant laws. That is illustrated by the Appellant completing the pre-trip documentation on 11 March 2013 indicating that she was not physically or mentally fit to drive a truck.

[114]There is evidence that before the week of 18 to 22 February 2013, the Appellant had not indicated to her employer that there was any physical or psychological reason why she could not perform her allocated driving duties.

[115]The Appellant submits that, although management is supposed to encourage drivers to report problems and talk about any issues they are having, her manager (Mr

Clark) made this “impossible.” The strained relationship between the Appellant and

Mr Clark has been described earlier in these reasons. So too has the Appellant’s

written compliant in relation to Mr Clark, dated 12 February 2013, which indicates that her reservations about reporting her injuries were based in his tone when speaking with her, and her sense that Mr Clark made her feel like a hypochondriac and belittled her. I accept that the Appellant felt diffident about reporting problems, but not that she found it impossible to do so.

[116]The Respondent submits that the Appellant has not discharged her onus of demonstrating that any action taken by her employer, leading to her psychological condition, was either unreasonable or taken in an unreasonable way. Her condition may have arisen partly out of her working undesirable hours in an unwanted role as a full time truck driver but in view of the content of her contract and discussions around this, which she agreed had occurred, the employer's requirement for her to perform the hours similar to the other truck drivers was reasonable.

[117]I agree, and would only add that such a conclusion is also supported by the fact that:

(a)	Boral attempted to accommodate (in part and having regard to the need to allocate hours fairly between other drivers) the Appellant's requests to work shorter hours; and
(b)	the Appellant had, on average, worked fewer hours of overtime than other drivers.

[118]In conclusion, I am satisfied that:

(a)	the Appellant's psychological injury arose out of, or was caused by, management action; and
(b)	the action was reasonable management action taken in a reasonable way by Boral in connection with the Appellant's employment.

[119] Accordingly, the appeal is dismissed and the decision of the Regulator is confirmed

[120]The Appellant is to pay the Regulator's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

[121] Order accordingly.

Decision

[1] This is an appeal by Jennifer Lesley Price ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of Q-COMP (now Simon Blackwood, Workers' Compensation Regulator) ("the Regulator") dated 7 June 2013. The Q-COMP decision confirmed the earlier decision of WorkCover Queensland ("WorkCover") to reject the Appellant's application for compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act") on the basis that the Appellant's injury arose out of reasonable management action taken in a reasonable way.

Brief history of the claim

[2]     The Appellant was employed by Boral Resources (Qld) Pty Ltd ("Boral") from 8 December 2011. On 28 February 2013, the Appellant lodged an Application for Compensation with WorkCover, claiming compensation for "Psychological system in general, Anxiety/depression combined" arising from "Increased stress at work being forced to work in a position that she didn't want to be in" (Exhibit 1). By its decision dated 5 April 2013, WorkCover decided not to accept the application (Exhibit 2).

[3]     In an Application for claim review dated 17 April 2013, the Appellant asked Q- COMP to review the decision of WorkCover (Exhibit 3). By its decision dated 7

(Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIC 1447; Qantas Airways Limited v
QComp (2006) 181 QGIG 301.
2 Transcript of Proceedings, Price v Blackwood [2014] QIRC 080 (Queensland Industrial Relations
Commission, WC/2013/216, Industrial Commissioner Neate, 4 February 2014) 1-93.
3 Ibid.

4 Transcript of Proceedings, Price v Blackwood [2014] QIRC 080 (Queensland Industrial Relations

Commission, WC/2013/216, Industrial Commissioner Neate, 4 February 2014) 1-93.

6 Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v

Stephens Brothers Pty Ltd (1984) 154 CLR 552, 555 and 559; Dickinson v The Motor Vehicle Insurance
Trust (1987) 163 CLR 500, 505.

7 WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2002)172 QGIG 6, 6-7.

9 WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2002) 172 QGIG 6 , 7.

10 See Q-COMP v Hohn (2008) 187 QGIG 139, 143; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

12 See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

17 Avis v WorkCover Queensland (2000) 165 QGIG 788.

20 Ibid [26]-[27] per McHugh, Gummow, Hayne and Heydon JJ.

21 Ibid [31].

22 Ibid [29]. 23 Ibid [57].

24 Ibid [36].

25 Ibid [41].