Christine Long and Comcare
[2014] AATA 975
•19 December 2014
[2014] AATA 975
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/1901, 2013/3169
Re
Christine Long
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal A G Melick AO SC (Deputy President)
Date 19 December 2014 Place Hobart For the reasons set out in the terms of the oral decision of 19 December 2014, attached hereto I make the follow orders:
I affirm the reviewable decision made on 5 March 2010 in relation to psychiatric injury, and I affirm the reviewable decision made on 17 May 2013 in relation to bursitis injury.
…………………………………………..
(Deputy President)
BACKGROUND
This is an application by Ms Long to set aside reviewable decisions made on 5 March 2010 in relation to what I will describe as the psychiatric injury and also review of a decision made on 17 May 2013 in relation to what I will describe as the bursitis injury.
The applicant was employed with Medicare Australia since 13 August 1984 until she left work in 2009 and finally retired in 2013. She made a workers’ compensation claim for a bursitis injury to her right shoulder and for right neck strain, which I refer to as the bursitis injury, in February 2005. That claim was accepted.
The claim was resolved and as part of her return to work program following that injury, she was asked by Medicare to work for their Organ Donation Registry, and commenced with that division of Medicare Australia in about 2006. She in fact moved from an office in Rosny to the Organ Donor Registry in Victoria Street in Hobart.
During 2008, several things happened in the applicant’s life which I will hereafter refer to as the 2008 issues. Her father became ill and died. Her future daughter-in-law or future partner of her son was badly injured in a car crash on the day of, and just before, her wedding. She was having problems with behavioural issues with her son and he in fact had a restraint order taken out against him by a third party. She had an operation following on from discovering a lump in her throat, which caused her some anxiety as she heard it may be cancerous and she was continually contacted by her mentally ill sister.
On 4 June 2009, the applicant suffered a further injury at work in the nature of anxiety and depression and made a further claim for worker’s compensation, dated 11 June 2009, which I have called the claim for psychiatric injury. This claim coincided with a claim for a further period of incapacity as a result of the bursitis injury.
At various times, the respondent disputed both claims and on 5 March 2010, the first determination in relation to the psychiatric injury was confirmed on review and, on 16 January 2013, a determination was made that she was not entitled to compensation for the incapacity due to the bursitis injury, and that determination was affirmed on 17 May 2013.
ISSUES
The issues for the Tribunal are:
(1)What ailment or ailments, if any, did the applicant suffer on or about 4 June 2009?
(2) Whether the ailment or ailments were contributed to to a significant degree by the applicant’s employment by the Commonwealth? and
(3) Did the action of the employer amount to a reasonable administrative action taken in a reasonable manner, pursuant to section 5A(1) of the SRC Act, hereafter referred to as the Act.
Now, I will deal with some of the relevant law.
RELEVANT LAW
In relation to injury, the Act defines injury in section 5A(1) as follows:
“(1) In this Act: “injury”means:
(a)A disease suffered by an employee or
(b)An injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of that employment;
But does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
And Section 4 of the Act deals with aggravation:
“(1) In this Act, unless the contrary intention appears:
"aggravation" includes acceleration or recurrence.”
Disease is defined in the Act in section 5B(1).
“(1) In this Act: "disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”
and the question as to what constitutes a significant degree in relation to section 5B(3)
“(3) In this Act:
"significant degree" means a degree that is substantially more than material.”
is dealt with in, among others, the case of Comcare v Sahu-Khan (2007) 156 FCR 536, where Finn J said, at paragraphs 8 to 18:
“Material ‘means more than a mere contributing factor’: of substantial import or much consequence; it imposes an ‘evaluative threshold’ below which a causal connection may be disregarded - involves looking at all the contributing factors and deciding whether the employee’s employment did or did not contribute materially to the suffering of the ailment- it will always involve matters of fact and degree.”
Or, as Senior Member Creyke has said more recently, in Winchester v Comcare (2014) AATA 15, at paragraph 53:
“The contribution must be one of substance and must be considerably more than de minimis or a mere contributing factor.”
I also note the provisions of subsection 5A(2), which says:
“For the purpose of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”
THE EVIDENCE
On 3 April 2006, Ms Long moved from Rosny to the Victoria Street office in Hobart, to work with the Organ Donor Registry. She initially started on restricted hours. In December 2006, she returned to full pre-injury hours. In 2007, she was subjected to a Quality Control procedure, which resulted in a further action being taken by way of Quality Assurance, hereafter either referred to in full or as QC or QA. Now, to understand this, I go to exhibit 26, which is a statement of one of Ms Long’s co-workers and, from time to time, one of her supervisors, and I refer to paragraphs 2 to 4, where she says:
“2.In Medicare, there are two quality checking procedures. One is known as Quality Assurance (QA) and the other is Quality Control (QC). QC is generally performed the next day on a random selection of work for each employee. Three pieces of work would be selected daily for each processed batch and the results were reported to the National Audit Integrity Team. Note: QC is a National Audit Integrity operational requirement and is performed on all staff that have been deemed competent.
3.QA is not reported. QA is undertaken when a new employee commences. QA would continue until the employee becomes competent. Note: If QA is being performed on a staff member they are not also QC’d.
4.At various times random checks (informal checks) on accuracy levels were carried out on all staff to ensure that the team was meeting the required accuracy of processing standards. A date would be selected for a staff member and the processed work checked. If there were a number of errors identified, another date would be selected and checked. If a pattern of errors continue to be identified, the person would be taken off the formal daily QC process and QA would be performed on all transaction until they had reached the standard required.”
In 2008, the 2008 issues I already referred to occurred. And then, at exhibit 26, there are further descriptions given as to what actions were undertaken and the reaction of Ms Long. The person who I will just refer to as A, said:
“5.As acting Team Coach, my practice was to ensure QA was performed on each staff member once per month (where time permitted). This process was undertaken because if errors were made it could result in a life saving opportunity lost. Once transactions had been checked feedback was provided orally to the staff member on the work selected. This was generally done at the staff member’s desk. When I have conducted a QA process in relation to Chris, I would go to her desk and provide her with the feedback. I would show her the errors recorded, explain the errors and if she did not understand and/or questioned the error, I would provide her with additional information. This included providing her with notes or to show Chris where the business rules could be located. Only occasionally did Chris question errors that I pointed out to her. I did identify from Chris’s body language that she was edgy and did not appreciate receiving feedback, therefore I was very careful in providing the feedback and ensured it was provided quietly. Chris would occasionally huff and say “what have I done this time”. Chris was defensive and appeared to become more defensive when there appeared to be issued outside work. If Chris was uncomfortable with feedback being provided at her desk it could, at any time have been provided to her in a separate room. Regarding the checking of work and feedback, Chris was not treated any differently from any other staff member.
6.The accuracy of processing level to be reached was 97%. On some occasions Chris’s accuracy of processing was down to 45% or 55%. There were occasions where errors were not recorded and a reminder would be noted (which meant the error would not be included in the percentage calculation). This process was to assist Chris and was treated as a positive. All attempts were made to assist Chris to ensure that she did not have to be placed under the Performance Improvement process. To my knowledge Chris was not placed in Performance Improvement.
7.It was important to reach the accuracy of processing standards for a number of reasons. They include:
7.1 If the data is recorded incorrectly it can mean that someone could potentially miss out on a life saving opportunity of receiving a donated organ;
7.2if a staff member is making mistakes the organisation has a duty to assist them to reach the required standard;
7.3if a staff member does not reach the standard required it can result in being placed in the Performance Improvement Program. Part of the process is to agree on strategies to assist the staff member. Strategies used would depend on the individual situation. If following a performance improvement process the staff member had still not reached the required standard, an extension may be offered. If after the agreed weeks the staff member had still not reached to required/aged standard then a Performance Inefficiency process is the next step. One outcome of the Performance Inefficiency process may be termination of employment.
8.When Chris first started in the Organ Donor Register I QA’d her work. She did not display any negative body language when she first commenced. At that stage I was sitting opposite Chris. Her negative body language started when a close colleague was undergoing a Performance Improvement Process (PIP) and Chris appeared to be nervous because she was being QA’d at that time. There were also other staff in the area that were being addressed over certain issues which I believe Chris was also aware of.
9.I first became aware that Chris was not happy with feedback being provided by J when E, as the acting Team Coach, called a meeting with Chris and requested that I attend to explain business rules in relation to error that had been identified, as Chris had questioned J’s QA work. At that time it became apparent that Chris did not want feedback to be provided by J. E agreed that he would ask K to perform some QA and also provide the feedback to Chris. However, E did make it clear to Chris that J would also need to perform QA and provide feedback as that was part of her duties. J had mentioned to me that she was uncomfortable providing Chris with feedback due to the response and reception that she received from Chris.
10.J was often asked to perform QA as she was extremely thorough. When J first started providing feedback to Chris I sat across the aisle from them both, and from where I sat I was unable to hear feedback being provided by J.”
A brief summary of that indicates the following:
(a)That Quality Control was undertaken on a random basis and applied to all members of the team, of which there were up to 15 working at any one time.
(b)Quality Assurance was also conducted on a random basis, although less frequently, but also could be targeted in that if a quality control process identified somebody with an unacceptable level of errors, they would be subject to the QA process until the level of errors reached acceptable levels.
(c)There was an important distinction there because QA could either be random or it could be targeted.
Ms Long gave evidence by way of a statement and oral evidence and I rely upon matters raised in her statement, tendered as exhibit 2, where she says:
“My first year at the ODR was fine. I don’t recall having issues at all. The manager was more tolerant of my need to take breaks, etcetera. But it was generally more relaxed for my shoulder, but it was generally a more relaxed place.”
Employees I will refer to as J and A worked there, but were not singling out employees for scrutiny as they did when an employee I will refer to as L started in 2007. She says that when L started as the team coach in 2007, the culture seemed to change. I note at this stage that team coach can be described loosely as a supervisor. She also says:
“We were under scrutiny at the time from what time we came, to our phone calls, what work we were doing. If I tried to take a break to ease my shoulder, I was told to sit down again and not get up at all.”
Although I note that was not put to any of the employees that were called.
Ms Long says her work was quality controlled for a number of weeks in 2007.
“I didn’t have a problem with the process as such, but I was unhappy with the way in which I was treated during those weeks. J was the one checking my work each day and she was rude and not discreet when she spoke to me of my error rate.”
She goes on to say that she felt like she was being watched by L, J or A constantly. Then she deals with events leading up to June 2009 and indicates that L was transferred and the new coach was E. She indicates that she had been told that her error rate had dropped to a level which wasn’t acceptable. She took that on board and began to have her work 100 per cent QCed again as happened in 2007. She indicates that during this time, J was the one to QC her work, and she found that she was rude, unhelpful and said things like:
“You made another error – “
in front of other work colleagues. She also claimed:
“That J was also loud in her announcements to me about the errors and it was a very humiliating process.”
Then she says:
“Generally, I was feeling really unwell without knowing what was wrong with me. I had never suffered depression or anxiety and it wasn’t until I saw Dr White in September 2009 that I became aware that I was suffering from a psychiatric condition.”
I will deal with the psychiatric condition later.
“When I was asked to attend a meeting on 4 June 2007, I was intending to go, but when I got home on 3 June, I just crawled into bed and couldn’t leave for two days.”
And effective from that stage on, she has been off work until her retirement.
There were some matters of credit raised in relation to these hearings, but I find that no one’s credit was seriously challenged except, perhaps at time to time, that of the applicant. Many matters were put to the applicant in cross-examination and to me in submissions and I accept there were several inconsistencies, but I note that these matters occurred over a long period of time and Ms Long’s perceptions could be coloured by her depressive illness. I consider that she answered questions as honestly as she could and often to her disadvantage. As already indicated, I have accepted her as a witness of credit and I make no adverse findings of credit against her.
However, I must assess facts and their affects objectively and not through the eyes of Ms Long who, for reasons dealt with below, often saw events in a subjective and hence different light to those of other witnesses. I also note there was considerable evidence given about phone calls and although they feature on several occasions and in several discussions, the evidence seems to be that there was little basis to suggest the counselling in relation to the phone calls contributed in significant degree to any of the events complained of by Ms Long or to her depression. She said as much in her evidence and her complaints were directed to not only the QA process, but the manner in which it was carried out.
PSYCHIATRIC INJURY
The next issue we need to decide is does Ms Long suffer any injury? I will deal with the psychiatric injury first. The first person she saw was Dr White and she saw him on 10 September 2009 and he deals with these matters in two reports. Firstly is exhibit 13, which is a report dated 8 September 2010. He says in conclusion at Page 5:
“She perceives that her problems have been hindered by ongoing unreasonable pressures from her employer, financial problems second to her employer’s cessation of income payments, stress about a forthcoming court case around her claim and a flare in bursitis due to the workplace stressors.”
In answer to the question, “If so, what is the medical condition and prognosis – which states:
“Major Depressive Disorder, Single Episode . The prognosis in the short-term is poor. Ms Long believes that when her legal case is resolved, she will “be able to get on with it” and that she will improve. The latter belief is very important prognostically, and in light of that, I believe that eventually, she will make significant progress with ongoing appropriate treatment.
However, in a report dated 7 February 2013, Dr White draws the following conclusions:
“Ms Long is a 51 year old woman who continues to suffer from a chronic Major Depressive Disorder, Single Episode, marked by lowered mood, reduced interest and other biological, psychological and social symptoms of depression.
The causation of her depression has been described in numerous reports and the main cause of her ongoing depression appear to be chronic pain from bursitis and an unresolved litigation with regard to a WorkCover claim, which, to date, has been unsuccessful. Her family history of mood disorder may be a predisposing factor and Ms Long is now suffering from chronic embitterment, which would also be a contributing factor.”
Dr Sale provided a report dated 24 February 2011 for the respondent and that report is at exhibit 13. He notes the relevant history at page 2 and says:
“Ms Long told me that she had been employed at the Rosny Office of Medicare but had been unable to meet the expectations of that office in relation to her work output, a consequence of a shoulder problem, bursitis. She also alleged that the management attitude at Rosny had been uncompromising and she had been bullied.”
He says further down the page, at page 2:
“Accuracy - she said that her accuracy had come into question. She was first informed this by a supervisor named J and said that this had been yelled at her when there were other staff present nearby. She thought this may have occurred during May 2007. She said it caused her to feel distressed, useless and stupid. Her accuracy had improved only to decline again in 2009. She attributed this to a painful shoulder condition. Ms Long also referred to seeing emails that referred to her accuracy problems. She said that these had mortified her.”
Page 3 –
“When asked whether personal problems may have been a source of distraction and contributed to difficulties with accuracy, she stated, “Not at all.”
Later down at page 3, he says:
“Although the background to Ms Long’s claim involves a shoulder condition with an onset during 2005, cessation of work in 2009 arose out of a deterioration in her mental state. She said at the time she was continually anxious, frequently tearful and had lost weight.”
At page 4, Dr Sale notes:
“Ms Long conceded that there had been a number of personal stresses over recent years, primarily during 2008. This included her father becoming ill with throat cancer. He died during late 2008. Also during that year, a daughter-in-law had suffered severe injuries in a motor vehicle accident. She is said to be now well on the way to recovery. There had also been some problems with her son, who had been a significant cannabis user. There had also been problems between her son and a neighbour culminating in him being made subject to a Restraint Order for a period. This was also in 2008.
Although not initially volunteered, Ms Long later acknowledged that her former partner had also suffered injuries around that period (burns). This relationship came to an end approximately six months ago. She said this had not been a source of distress to her. Another problem that emerged in her history was finding a lump in her throat. She was unable to be precise about when this occurred – possibly 2007 or 2008. Although a sinister cause had been excluded, Ms Long decided to have it surgically resected. She denied that the matter played upon her mind.”
He also refers to a statement written by a supervisor back in 2007 and said:
“This statement reports that Ms Long has a history of being unhappy about receiving feedback. There is also reference to personal difficulties and that as a result of these, Ms Long had needed time off…”
When asked about a diagnosis at page 11, he said:
“Adjustment disorder with anxiety and depressive symptoms appears the most likely diagnosis, given the various situational issues involved. The differential diagnosis includes Major Depression, taking account of Dr White’s initial assessment, including complaints of symptoms such as weight loss. In addition, there may be grounds for making a diagnosis of a Pain Disorder in relation to her shoulder problems, i.e. psychological factors judged to be influential in the causation, aggravation or maintenance of this complaint.”
When asked about the cause of the condition, he says:
“There have been multiple causal factors to Ms Long’s problems. While tension in the workplace has probably played a part, the major part of her difficulties arise, firstly, out of a considerable number of major family and personal stressors, particularly during 2008, and, more recently, the stressors associated with being a claimant, for example, financial difficulties.”
Ms Long is being treated by a psychiatrist by the name of Dr Turnier-Shea, who provided a statement, which was exhibit 18. She diagnosed Ms Long as suffering a Major Depressive Disorder with associated anxiety symptoms and when asked about relevance to background matters, she says:
“Clearly, social stressors and life events will have an impact on any individual. In investigating any person’s life, one will naturally come up with a multitude of stressors that people undergo/experience over a significant period of time. This compares with performing a psychiatric ‘autopsy’ following an individual’s suicide. One clearly finds a lot of lifetime stressors. However, to draw the conclusion that these were responsible for the individual’s death is merely speculative. Again, in Ms Long’s case, having followed her up over the last several months, I believe that no matter what social stressors she may have experienced, that her employment was a substantial contributor to the onset of her condition.”
I should note that report was provided on 3 May 2011. In view of those reports and no contradictory reports, I consider it’s clear that Ms Long has a psychiatric injury, most likely being major depressive with anxiety symptoms.
CONTRIBUTION
The next issue I have to address is was work a significant contributing factor? In view of the tests set out in the law I’ve referred to above, including Sahu-Khan’s case, and the fact that Dr Sale, in cross-examination, conceded that the work factors could be a factor, I find that Ms Long’s employment with Commonwealth contributed to a significant degree to the psychiatric injury, which I have now found she suffers.
The incidents that I find to be a significant contributing factor is the Quality Control and Quality Assurance process, in particular, Quality Assurance process, which was occurring in 2009, prior to Ms Long leaving work.
ADMINISTRATIVE ACTION
So the next question I have to address was, was the quality assurance process undertaken an administrative action?
I note at this stage that the QC process was random. The Quality Assurance program was, at first instance, random but could become targeted as a result of unsatisfactory results either from a random QC action or a quality assurance action. Once this occurs, the Quality Assurance becomes targeted and will continue until the employee reaches an acceptable level of accuracy. If that does not occur, the employee will then be forced to undertake a Performance Improvement Program, which could be a precursor to dismissal.
I note that Ms Schokman suggests that administrative action does not occur until a worker is placed upon the improvement program, referred to as the PIP, whereas Mr Hobbs contends that there can be an overlap between operational action and administrative action and that administrative action commences once the targeted QA commences. There is a reasonable amount of law in relation to this and the lines and distinctions are often quite fine. I refer firstly to the Commonwealth Bank of Australia v Reeve (2012) FCAFC 21 paragraphs 24, 33 and 60, paragraphs 24 and 33 appearing in the judgment of Gray J and paragraphs 60 in the judgments of Rares and Tracey JJ.
“24.
In this respect, it is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare [2005] FCAFC F16 (2005) 87 ALD 341 at [21] – [23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury. It follows that the more broadly the exclusion is constructed, the more destructive it becomes of the right to compensation afforded by the SRC Act. For instance, if the exclusion were to be construed so that any action that could be described as falling within the ordinary meaning of “administrative action”, taken by an employer, and commencing a chain of causation that resulted in injury to an employee of that employer, it is difficult to see that any employee would have any entitlement to compensation. Some examples surfaced in the course of argument on the appeal. It could be argued that an injury to an employee in falling down stairs at his or her workplace was the result of administrative action in directing that employee to work at that workplace. If a truck driver became injured as a result of a motor vehicle collision, it could be said that the injury was the result of the administrative action of directing the driver to drive a particular route on that day. In the present case, it could be said that Mr Reeve’s injury resulted from the administrative action of appointing him to manage the Mt Hawthorn branch of the CBA. Counsel for the CBA disclaimed any intention to argue for such an interpretation of the exclusion. They did not attempt to offer a way in which the words “as a result of” might be confined to a causal relationship of sufficient proximity to prevent the exclusion having that kind of operation if the words “administrative action” were to be given a broad construction of the kind for which counsel for the CBA contended.
33.
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
60.
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be in “respect of” something that exists – he person’ employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B (2)(b), provided “the nature of and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566 at 586 [72] – [73] per Dowsett J, with whom Spender J agreed. An analogy, although taken from a different statutory context, can be seen form the facts in The Commonwealth v Rutledge [1964] HCA 63; (1964) 111 CLR 1. Thereafter working in her job for over four years, an employee, who was latently susceptible to developing paranoia, was required to perform new duties that involved her spying on fellow employees. Within two weeks the employee developed into an active psychotic. As Menzies J put it (111 CLR at 11):
“… it is sufficient, however, if the spying which was her employment of the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality.” (emphasis added)”
That case was followed by two Peters v Comcare cases, the first one being a decision of Bromberg J in Peters v Comcare (2013) FCA 808, where, at paragraph 34, he grants an extension of time on the basis that he considers there was an arguable case. That was then further considered in Peters v Comcare (2013) FCA 1361 by Tracey J, who, of course, was one of the justices in the Reeve case, and I refer to the analysis carried out by his Honour at paragraphs 28, 30 and 31.
“28.
The Court drew a distinction between “administrative action” and “operational action”. Gray J concluded (at [33]) that:
“In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer ... As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not unreasonably taken (followed also in National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 292 ALR 639 at [35] and Buck v Comcare [2012] AATA 327; (2012) 130 ALD 154 at ([45]).” (Emphasis in original).
30.
The Tribunal was alert to the distinction which had been drawn by the Court in Reeve. It quoted the passage from the judgment of Gray J which is quoted above at [28]. It found that the conduct about which Ms Peters complained took place in respect of her employment and fell within the concept of “administrative action” of the kind identified in Reeve.
31.
The relevant events related to the administration of Ms Peters’ employment as an employee and her relationship with her employer. For this reason I am satisfied that, even if the Court had jurisdiction to entertain the appeal, Ms Peters could not have succeeded on this ground.”
At the end of the day, the most relevant paragraph seems to me to be the comments made by his Honour at paragraph 28 of Peters number 2, where he says:
“The Court drew a distinction between ‘administrative action’ and ‘operational action’. Gray J concluded (at [33]) that:
and he then sets out the relevant paragraph at 60:
“Rares J and I said that the qualification of the final phase of the exclusion in section 5A(1) is important. It requires the action be taken in respect of the employee’s employment. That qualification distinguishes the criteria of the exclusion in section 5A(1) from the actual circumstances that the Act uses to impose liability, namely, an actual circumstance that arises out of, or in the course of, the employee’s employment. This suggests that parliament intended this exclusionary action to be specific administrative action directed to the person’s employment itself as opposed as to actually performing part of the everyday duties or tasks the employee formed in his employment or job.”
As already noted, the applicant contends that the action would not progress from operation to administrative until the PIP process was undertaken. I note the supervisors at the relevant time were concerned not to advance Ms Long to the PIP because of her personal problems, including the 2008 issues, but that process could have been appropriate because of her error rate.
I find that they actually embarked upon a particular program and a program particular to Ms Long; that is, rather than putting additional pressure on her by making her undertake the PIP, which would have led to a dismissal should her performance not be corrected or improved to an appropriate rate, they, in fact, place her on a targeted quality assurance program in an attempt to get her accuracy up to the appropriate rate. It is a fine line to draw between the operational and administrative actions, but because this was a program specifically designed for Ms Long and particular to her, I find that it was, in fact, an administrative action and not an operational action.
I note that I would also find it was an administrative action if it was a QA process undertaken in the normal course of events as a result of an unacceptable level or inaccuracy being obtained by Ms Long. In other words, I find that the actions were done in respect of the employment relationship that Ms Long had with the Commonwealth and were of such a nature to be administrative rather than operational actions, and hence they are excluded from the definition of injury unless the action taken was not reasonable or was unreasonably taken.
WAS THE ACTION RESASONABLE?
That leads to the next question: was the action unreasonable? I do not think it was disputed the action was reasonable, but in any event, I find that it was reasonable for, inter alia, the following reasons. Information had to be accurately recorded, because if not accurately recorded donors’ wishes may not be complied with, causing unnecessary grief and upset to a donor’s family and possible legal action. Furthermore, if information was not accurately recorded, a potential donee could be denied the chance of a lifesaving operation. Other reasons are set out in the exhibit I referred to above from the employee who dealt with QC and QA.
TAKEN IN A REASONABLE MANNER?
The next issue to be determined, then: was the action reasonably taken or taken in a reasonable manner? There was some peripheral evidence about unhappiness by two other employees, but that was of such a nature that without them giving evidence I could give it no weight. Ms Long was obviously unhappy about the way she perceived the actions being undertaken but, as noted by Dr Sale, her condition would lead to undue weight or emphasis being given by to what others would perceive as reasonable behaviour.
Three other people at various times, Ms Long’s supervisors, in that they were team coaches or assistant team coaches, were called. They denied any suggestion of unreasonable behaviour on their part but did say that Ms Long often appeared to resent the QA process and at times reacted inappropriately to their efforts. I found their evidence credible and consistent, and I note I have referred to earlier in some detail the statement of A, whose verdict was not seriously challenged or affected in any material way. Hence, I find the actions, which I found to be administrative, were undertaken in a reasonable manner, and hence, Ms Long’s psychiatric injury is excluded by virtue of section 5A(1).
BURSITIS INJURY
That leaves the question of the bursitis injury. There is no doubt this was an injury that had resolved by 2006 and there is no evidence to convince me that it had reoccurred prior to 2008 or 2009. Under cross-examination, Ms Long agreed with the following comments attributed to her in T14 of exhibit 9, which was a report from Advanced Personnel Management dated 2 July 2009. On page 1, it notes:
“Ms Long reported she experienced a flare up of her condition on 3 June 2009 when she experienced additional stress in the workplace. Ms Long stated that she began to feel tension and pain through her right shoulder and increased anxiety three weeks prior to 3 June 2009 as a result of workplace practices and two colleagues’ actions and words within Medicare Australia.”
Then at page 2 under Functional Status:
“Ms Long reported that her anxiety increases her pain and tension through her right shoulder and vice versa. She stated these two factors are the main contributors to increased aggravation; anxiety and physical demands of everyday life are secondary to these.”
I note that Dr Sale confirmed in his evidence that psychiatric injuries such as that suffered by Ms Long could lead to an extenuation of or undue emphasis or heightened experience of pain or discomfort.
At T16 of exhibit 9, there is a report from orthopaedic surgeon, Dr Mackie, dated 13 April 2010. He notes:
“Clearly there have been some long-term difficulties in her assessment and management and I believe there is not much I can offer today. I have had a long discussion with her and she is aware that my concern is that she has a significant psychological overlay to her pain presentation. Certainly on examination, though, she is tender in the anterolateral subacromial space; however, I could not demonstrate any obvious crepitus, could not obtain impingement signs, and did not believe there was any instability in the glenohumeral joint.
I have suggested to her there is perhaps not much to offer from an orthopaedic surgical viewpoint. She may benefit assessed by a chronic pain specialist to see if she has a neurogenic background to her pain.
I note that that a report provided to Ms Long’s then-general practitioner, Exhibit 12, is one of several reports provided by Dr Stanley-Clarke, dated 4 September 1913, where he notes:
In May 2009 there was no specific incident, but her symptoms worsened with activities at work and she returned to a general practitioner, where she had further conservative management. She indicated there was a considerable amount of stress related and she came under a psychiatrist’s care with medications, and she has not worked since 2008.
On the summary and assessment, he says at page 4:
“This is unchanged from my previous assessment in February 2012. Based on my clinical assessment today I am of the opinion that the initial diagnosis of a subacromial bursitis was correct. There is no active bursitis at the present time leading to any significant incapacity or painful impingement. I do not believe there is any significant impairment, not that it would in any way limit her ability to return to her previous pre-injury employment. If she was a patient presenting to me in my clinic with her level of symptomatology and clinical presentation, I would offer no surgical treatment.”
I have noted proof of evidence by Dr Stephen Reid, sports physician, and this is also his opinion.
There is, it seems to me, no clinical evidence of any physical reason or factor for causing the bursitis-type pain, but it is quite clear from the reports of Dr Sale and his evidence and the report of Dr Mackie that if this pain is genuinely felt – and I have no reason to believe that it has not been felt – that it is psychiatric in nature and not mechanical.
Hence, I find that Ms Long does not suffer a bursitis injury based upon any physical basis and whatever injury she suffers in relation to bursitis is founded purely upon her psychiatric condition, which I have already ruled as non-compensable.
Accordingly, I affirm the reviewable decision made on 5 March 2010 in relation to psychiatric injury, and I affirm the reviewable decision made on 17 May 2013 in relation to bursitis injury.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of
the reasons for the decision herein of
A G Melick AO SC (Deputy President)[Sgd]
Administrative Assistant
Dated: 19 December 2014
Dates of hearing 8, 9, 10, 11, 12, 17 & 19 December 2014 Counsel for the Applicant Ms Christine Schokman, Ogilvie Jennings Counsel for the Respondent Mr Craig Hobbs, as instructed by Australian Government Solicitor
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